Cannabis in the Workplace: Duty and Responsibility for Employers and Employees

Jun 22, 2018

The Canadian Senate has now passed the Cannabis Act and we are well on our way to legalized recreational marijuana use in Canada this October (2018). The bulk of responsibilities will fall on the shoulders of the both provincial and municipal governments to implement the rules and regulations for the sale, possession and consumption of recreational marijuana. However, it is vital for employers, large and small, to also shoulder some responsibility for this new legislation by establishing comprehensive company policies for Cannabis in the workplace. Businesses that are preparing policies now will better manage the impact of legalized marijuana, ensuring safety for both the employees and the business.

Recreational marijuana on the increase 

If you think this is not a big concern for your business, consider the following statistic: upon the Cannabis Act approval, the number of NEW adult recreational marijuana users is estimated to increase to 40 percent, up from 22 percent adult recreational marijuana users prior to the act. You may not have any recreational pot users on your work force right now, but it’s almost guaranteed some of your future hires will be. 

Cannabis in the workplace

Cannabis in the workplace could be considered an unfamiliar territory for many Canadian employers. According to a 2017 Human Resources Professional Association (HRPA) survey, only 11 percent of respondent companies have had to accommodate an employee that requires medical marijuana. Perhaps briefly examining medical marijuana in the workplace is good place to begin unpacking this week’s hottest topic in Canada.

Duty to accommodate is a two way street

Medical marijuana has been legal in Canada since 2001 and can be prescribed for any medical condition. Employers should know that as per the Canadian Human Rights Act, medical marijuana use is included within the eleven protected grounds, under the “disability” heading. A medical condition treated with prescribed medical marijuana can be considered a disability. Even an employee that is addicted to cannabis falls under the disability heading. 

An Employer has the duty to accommodate, up to the point of undue hardship, employees with any kind of disability, physical restriction or addiction. Regarding medical marijuana use, employers have the right to ask for details regarding the employee’s medical condition, length of treatment, daily amount of medical marijuana consumed and how it’s consumed to determine a strategy for accommodation that ensures both the safety of the employee and their co-workers. It is important to note that the employer has a duty to accommodate the needs of the employee, not fulfill the employee’s preferences. Employers are well within their rights to choose accommodations that are cost effective and the least disruptive to the workplace. Finally, if, in the future, an employee begins using medical marijuana to treat a condition, it is their duty to inform their employer. 

Workplace safety 

For many employers, workplace safety sits at the top of the priority list. With the upcoming legalization for recreational marijuana use, Pamela Bragg, a human resources consultant and expert on Cannabis in the workplace has crucial advice for employers:

“For those of you operating in a safety sensitive environment, it becomes even more significant in that those jobs need to be designated as safety-sensitive. Talk to your HR people, talk to your safety people because if those jobs say they are safety sensitive in the job description, it comes with some advantages for you, the employer. The Government of Canada designates that employees have a duty to inform you that they are using something that may impact their safety or the safety of others.”

Other major concerns for both employers and employees after legalization are impaired driving and the dangers of combine marijuana and alcohol, illness claims and decreased productivity. 

Impaired drug driving 

After legalization, it will still be illegal to operate a vehicle while under the influence of marijuana. Law enforcement officials will be authorized and equipped to use oral fluid drug screeners during roadside stops, should they see signs of impairment, including red eyes and the smell of pot. There are a new set of offenses for pot impaired drivers and law enforcement will have new tools to better detect impaired drivers, making it easier to enforce. According to the Canadian Journal of Addiction, marijuana is already the most commonly found substance in workplace drug testing. It is critical for employers to inform their workplace drivers of the new penalties for driving under the influence of marijuana, and the dangers of combining alcohol and marijuana while operating a vehicle and/or machinery. 

Health effects for marijuana users

New marijuana users can expect to experience an abundance of effects: increased heartbeat, dizziness, drowsiness, fatigue, headaches, along with impaired memory, concentration and motor skills. Nausea, vomiting and seizures are also not uncommon health effects. Employees may also experience severe disappointment in themselves should they have to take sick days just because they got too high.

Loss of productivity 

The above listed health effects from using marijuana can have a direct impact on an employee’s ability to perform their jobs. THC, The most well-known chemical found in marijuana, is responsible for getting the user high, and with that high for some users comes impaired motor skills, reaction time and concentration. If an employee’s duties requires any one or all three of those skills, one can expect loss of productivity. Users partaking in pot outside of work hours should note that THC will linger in the body up to one to two months after smoking.

Over the next few months, businesses should be preparing for a new era in Canada. Study the steps towards marijuana legalization, state clearly your company’s policies, and start the dialogue with employees. It’s important for employers and employees to be equally accountable to each other to create a safe and productive workplace for all. 

Links

Free downloadable PDF resource document from Reliance Insurance:   Employer Guide to Cannabis Legalization - Addressing Marijuana in the Workplace.

Human Resources Professionals Association:  Clearing the Haze: Human Resources Professional Association publication PDF

Recent News

CNN:  Canada becomes second nation in the world to legalize marijuana

CBC:  Legal recreational marijuana: what you need to know

Resources

Bill C-45 The Cannabis Act

Pamela Bragg - Sarkany Management

Canadian Human Rights Act

Note: This information is for informational purposes only and is not intended as legal advice. 

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