As of July 2018, recreational use of cannabis will be legal in Canada. According to data from other jurisdictions that have already adopted similar legislation, the legalization of cannabis could lead to an increase in the consumption of cannabis because of the decrease in the stigma associated with it.
In light of this, it becomes even more important for Canadian employers to adopt clear policies on the use of drugs and alcohol by their employees, notably to prevent workplace accidents, increases in claims for sickness or occupational injury benefits, decreases in employee productivity and absenteeism related to the use of these substances. Employers who already have such policies should also review them in order to ensure that they adequately cover new situations related to the legalization of cannabis as well as verify that their employees are aware of and understand the policies.
- The legalization of cannabis does not alter the respective rights and obligations of employers and employees with respect to the use of drugs and alcohol in the workplace or the performance of work under the influence of these substances.
- Thus, employers still have a duty to protect the health and safety of their employees, both physically and psychologically. In accordance with their obligations of prevention and protection, employers will retain the right to regulate the consumption, possession and trafficking of cannabis at work, as they currently do with alcohol. They may also prohibit or modulate the right of employees to perform work while under the influence of cannabis, which can include, for example, control over cannabis use during employee breaks and for a reasonable period of time before the start of work.
- Employees retain the obligation to perform their work with care and diligence, and to ensure that they do not endanger the health, safety or physical well-being of others in the workplace. Failure to do so may result in disciplinary action, which can go as far as dismissal.
- In a pre-hiring context, the requirement for an employee to undergo a drug test, including cannabis, will only be justified under two circumstances: (1) where the workplace or position in which the employee is hired or promoted is one that has important safety concerns as well as (2) where there are reasonable grounds to believe that the employee has a problem of consumption that could affect his or her work performance (or when the employee admitted that he or she has such problem).
- Random and/or systematic drug tests, screening and searches on the job remain prohibited. The state of intoxication and/or possession of substances by an employee may, however, be verified by these means, primarily in a high-risk workplace, if (1) the employer has reasonable grounds to believe that an employee is impaired during the performance of his or her work, if (2) the employee was involved in a major incident or work-related accident, or (3) the employee resumes work after having been absent due to problems related to consumption or for purposes of following a treatment aimed at curing him or her of substance dependence. In addition, to prevent the "relapse" of a dependent employee who has been rehabilitated, employers may continue to enter into "last chance agreements" to reinstate an employee in the workplace if he or she undertakes not to repeat certain behaviors, on pain of immediate dismissal. These agreements must, however, be limited in time.
- Employers will, nonetheless, have to contend with the additional challenge of ensuring the reliability of cannabis testing. These are indeed controversial because the presence of cannabis in the blood is detectable for a longer period of time than the period for which the employee can be considered "under the influence".
- Under human rights and freedoms legislation, employers also retain the obligation to accommodate employees who are addicted to drugs, including cannabis or alcohol, seeing as this problem is considered a disability. However, this obligation applies only to employees with a real problem of dependency and not to any employee who is a recreational user of such substances. Once it is determined that an employee has an addiction, his or her employer cannot automatically terminate the employment for reasons related to these problems. In this kind of situation, employers must, on the contrary, make arrangements to enable the dependent employee to continue working within their organization, to the extent that the appropriate accommodations do not constitute undue hardship for them. For example, the transfer to a less hazardous workplace or the offer to follow a detoxification therapy may be proposed.
- In a unionized context, employers will have to ensure that the adoption, modification and enforcement of drug or alcohol policies is performed in accordance with the provisions of the applicable collective agreement.