This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. on December 21, 2017.
In prevision of the legalization of cannabis, which will become effective on July 1, 2018, provinces had to provide the legal frame to be respected by individuals and companies. Quebec’s Bill 157 (An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions), (the bill), enacts the Cannabis Regulation Act, which provides notably different limitations in regards to the possession and growing of cannabis for personal use.
However, the bill fails to provide any clear guidance regarding the consumption of cannabis in the workplace, leaving a path filled with unanswered questions for employers throughout the province. The only two clear prohibitions applicable to the workplace relate to the fact that smoking cannabis is synchronized with the prohibition regarding the smoking of cigarettes and complete prohibition of driving a vehicle under the influence of cannabis.
As such, if employees were legally allowed to smoke cigarettes in a specific place on their employer’s premises, they would be, according to the bill, allowed to smoke cannabis in the same locations. That being said, employers are entitled to enforce greater restrictions pertaining to the consumption of cannabis, eventually amounting to a zero-tolerance policy. In the presence of such policies, an employer may enforce stiffer penalties to an employee who fails to respect same, and eventually terminate said employee.
In the event the employees’ tasks require driving or having the control over any sort of vehicle, the bill prohibits them from having any quantity of cannabis in their body. Violating this rule may lead to criminal and penal statements of offence leading to fines and even imprisonment. Such actions can also lead to disciplinary measures, and notably, the employee’s termination, for cause.
It is important to note that employers have an obligation to ensure a safe workplace for their employees. They may be held liable for any damages suffered by third parties or employees, due to other employees’ faults, omissions or negligence. A careful analysis of their employees’ actions and behaviours will be required upon the legalization of cannabis, especially in workplaces where safety hazards are more likely to happen, such as factories or laboratories. If the effects of smoking cannabis are somewhat known to the public in general, cannabis may be ingested in other ways.
Unfortunately, the bill is silent in regards to the consumption of oils and edibles, and their regulation in the workplace may prove to be delicate. Employers will have to act carefully not to violate their employees’ fundamental rights such as the right to privacy, in assessing whether they are consuming — or have consumed — a derivative of cannabis, such as a cake, a brownie or any other candy or food. This delicate exercise will be even more difficult for employers, considering that the effects of the ingestion of such edibles are often delayed in time: employees may have consumed cannabis and be at the employer’s premises or at work, without being — yet — under the influence of same.
Employers may therefore have to train their managers and supervisors to be able to notice the effects of the consumption of such oils and edibles on an employees’ behaviour, as such behaviours may be altered in different ways than when an employee has inhaled cannabis through smoke. When the employer has reasonable suspicions that an employee is under the influence, he may ask such employee to take a drug test.
Moreover, only in specific circumstances are employers entitled to proceed with the random testing of employees to detect the consumption of cannabis. Such testing can only be justified in an inherently dangerous workplace, in relation to safety-sensitive employees, where a generalized problem with alcohol or drug abuse exists.
In the event an employee develops an addiction to cannabis, additional obligations, including attempting to provide a reasonable accommodation to the employee may have to be met, pursuant to the Quebec Charter of Human Rights and Freedoms.
Finally, employees who have a medical condition entitling them to the use of medicinal cannabis may also seek such reasonable accommodations from their employers, and a balance may have to be struck between the employees’ right to work without discrimination based on a disability and the employers’ obligation to provide a safe work environment.