Pot has now been legal in Canada for one week! Hell has not frozen over, or broken loose, as far as we can tell. Legal marijuana has been reportedly selling out and even illegal dispensaries are apparently having trouble keeping up. This suggests an uptick in cannabis consumption. I guess some people really were deterred by the small matter of recreational consumption being illegal, prior to last Wednesday.
With seemingly more people using recreational cannabis, questions about the impact of cannabis on the workplace, and particularly the employer’s ability to ban employee use off-duty have been flooding our inboxes.
The big question from the employee perspective seems to be: Can my employer ban me from using cannabis off-duty?
And from the employer: Can I restrict my employees from using cannabis off-duty? And if so, how much?
We have also been getting questions about the legality of drug testing, now that drugs are purportedly being more heavily used.
Cannabis and the Workplace
Employees have never had the right to come to work impaired. This was the case before cannabis was legalized and is still the case. Employers wouldn’t be expected to tolerate an employee coming to work drunk and the same goes for being high. Employees have an obligation to their jobs competently, safely and to be sober on the job.
In cases where medical cannabis is used, accommodations may need to be put in place to allow some cannabis use on the job, but this will be determined on a case by case basis and in collaboration with the employee, their doctors and the employer. Even employees who use medical cannabis should not be impaired at work.
Banning Cannabis Use Off-Duty
Like many things in the law, especially new areas of the law, things are not yet crystal clear. In some contexts, it may be reasonable for employers to ban cannabis use within a certain time period prior to a shift. This is likely only the case if the employee does a job that is highly safety sensitive and there is a good reason for exerting such control. Again, no employee can show up and work their shift impaired. For example, the CBC reports that Air Canada and Westjet have prohibited cannabis consumption on and off-duty for employees in “safety-critical” positions, like pilots and flight attendants. The same article reports that several police forces have banned cannabis consumption within 28 days of working.
In general, employers cannot reach into the personal lives of their employees and require them to do or not do something. Employees with high profile positions and safety-sensitive positions can be an exception.
For the most part, employers cannot require employees to submit to random drug tests. For more detail on this see our post on this subject. Generally, in order for a test to be legally permissible, the worker in question needs to be in a safety-sensitive position and the employer needs to have a reason to conduct the test. A reason might be evidence that the employee is smoking cannabis on the job or a workplace accident related to impairment.
Testing is tricky with cannabis because a high level of THC in the system does not necessarily indicate impairment. People also process THC at different rates. This means that a police officer might still have TCH in her system, even if it has been 28 days since she used cannabis.
While employers can make all the policies they want around refraining from cannabis use off-duty etc. etc., there is no doubt that these will be difficult to enforce. Drug testing should be used sparingly and results will be imprecise. This doesn’t mean that employers should not make their expectations clear. A policy and training is a good way to do this. In safety-sensitive jobs, where impairment creates real risks, testing and restrictions are more acceptable.