After months of anticipation, on October 17, 2018, Canadians awoke to legal cannabis. Have your workplace policies been updated to reflect this new legal reality?
Each province and territory has enacted legislation providing for a variety of models for retail and distribution, and specific rules regarding public consumption. While specifics may vary, broadly speaking, the impact on employers in every jurisdiction will have some commonalities. Specifically, while all employers should have updated policies establishing expectations for fitness for work, for those jurisdictions that permit some type of public consumption (e.g., Ontario), employers will also have to consider and navigate how permissible public consumption impacts off-site smoking at the workplace.
Many employers have updated impairment or fitness for work policies, and developed accompanying communications plans to ensure employees are aware of the expectations placed upon them regarding the consumption of impairing substances such as cannabis. Employers who have not yet updated or introduced policies regarding cannabis are well advised to do so. Policies outlining expectations around cannabis consumption and fitness for work, especially in safety sensitive industries or industries involving children, are integral.
Moreover, while employer policies prohibiting the consumption of impairing substances such as cannabis are justified, the employer’s duty to accommodate disabilities under human rights legislation means that, in certain circumstances, the employer may have to consider cannabis use from a different perspective.
In addition to drafting or updating impairment policies, employers should consider implementing an accommodation policy that also reflects updated language recognizing the legalization of cannabis. There are two ways the duty to accommodate may arise with respect to cannabis. Employers have a duty to accommodate the use of cannabis, with proper medical authorization, as a treatment or to ease symptoms of a disability. However, the duty to accommodate also arises where a cannabis addiction or dependency forms the disability itself. An accommodation policy is just as important as an impairment policy.
Legal cannabis is here, but it is not too late to update your impairment or accommodation policies if you have not yet done so.