By Me Aaron Makovka with the collaboration of Sandrine Malenfant, Law Student
On October 17, 2018, recreational cannabis will become legal and every employer must be proactive regarding the repercussions this change is bringing to their workplace. Employers have the obligation to guarantee the health and safety of their employees. Failing to adequately adapt their work policies to reflect this change in the law could have serious consequences.
Negligence, misconduct or an error made by employees due to a lack of internal policies regarding cannabis at work may lead to the employer being held responsible for any damages suffered by the public or by another employee.
That is why it is important to be ready in order to avoid unpleasant surprises.
Here is what you need to know.
An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (the Act), adopted on June 12, 2018, identifies very few prohibitions that will apply to certain workplaces.
- Prohibition against smoking cannabis in enclosed spaces:
Except for certain exceptions stipulated in the Act, smoking cannabis at work will be prohibited, but there will be nothing to regulate the consumption of cannabis by other means (e.g., vaporizers, foods, beverages).
- Prohibition against impaired driving:
Employees may not drive company vehicles while under the influence of cannabis.
- Prohibition against using cannabis:
When a job consists of watching over or caring for a person in a vulnerable situation, the worker is prohibited from using cannabis during his or her working hours. However, there is nothing to prevent the worker from coming to work already impaired by cannabis in this situation.
- Prohibition against working:
When a worker’s condition presents a risk to his or her health, safety or physical integrity or for the health, safety or physical integrity of others, notably due to his or her impaired state, the Act will prohibit him or her from working.
With the exception of these limitations, nothing will concretely regulate cannabis in the workplace. Therefore, it is up to you to ensure that your policies are clear and known to your employees as soon as possible.
To maintain a healthy and safe work environment, you will have to change several aspects of your internal polices. Here are a few tips to help you deal with the legalization of cannabis and identify the main changes to make as quickly as possible.
Clear guidance: the key to success
As an employer, you will have the power to choose between restricting and prohibiting any form of cannabis use by your personnel in the workplace, subject to the restrictions stipulated for certain workplaces in the Act.
Restricting
- According to the nature, the risks, the target audience and the danger to health and safety.
- It can be difficult to establish clear boundaries to ensure that employees are able to work. Drug testing does not allow THC levels in the blood to be measured with certainty. Therefore, it is difficult to ensure that employees are capable of working.
Prohibiting
- A zero tolerance policy is an effective way to ban cannabis use at work.
- The ban provides clear boundaries and is an effective way to control cannabis at work.
Regardless of the choice you make as an employer, the consequences for impairment at the workplace must be clear and known to your employees. In addition, remember to regulate cannabis use at professional events as well as to remove the word « illegal » associated with cannabis in your internal policies.
Training is essential
It is essential to educate your employees regarding the effects of cannabis consumption on their health, as well as about its repercussions on their work (productivity, safety, sanctions). Many factors influence the effect of cannabis on a person, including his or her physiology, social environment, mental state, as well as the type of product used (form, dose, concentration, means of consumption, etc.)
Specify their role and responsibilities regarding the consumption of cannabis at work.
- Your employees must be able to recognize the signs to report an impaired colleague in order to maintain a safe work environment, both for the individual in question and for other employees.
- In addition to training, distributing a pamphlet is an excellent way to ensure that the necessary information remains close at hand. For example, the pamphlet could include the main signs to help recognize an individual who is under the influence of cannabis, as well as who to contact in case of suspicion.
- Make it mandatory for employees to sign a declaration to ensure that they have followed the training that they are aware of the company’s policies with regards to cannabis and that they agree to respect those policies or be subject to sanctions.
Accommodations: prescriptions for medical cannabis
It is important to know that a prescription for cannabis does not give the person the right to consume cannabis in the workplace or to work while under the influence of cannabis. An employee who receives a prescription for medical cannabis may ask you for an accommodation, according to his or her needs.
The employer must ensure that the employee’s functions do not compromise his or her safety or the safety of others. In order to prevent employees from starting to consume cannabis at work as soon as they receive a prescription for medical cannabis, it is essential that your policies specify that a prescription for cannabis does not automatically give them the right to work under the influence.
Our recommendations for medical cannabis cases
When an employee wishes to use his or her medical cannabis prescription while working, your policies must clearly indicate that he or she must submit a request to the person in charge.
- Request : AN EMPLOYEE :
- Who receives a prescription for medical cannabis must ask his or her employer for permission to use it at work.
- Must complete a request for authorization, providing proof of the prescription.
- Meeting : THE EMPLOYER must:
- Speak to the employee in order to gain an understanding of his/her needs when he/she is at work.
- Establish the repercussions of the potential use of this prescription on his/her work.
- Assess the health and safety risks that such an accommodation would create within the company.
- Decision : THE EMPLOYER must:
- Decide whether such an accommodation is possible and whether it poses a risk to the health and safety of other employees, or the public, if applicable.
- Modify the employee’s functions if the health and safety risks are too high.
- Communicate his/her decision.
Accommodations: dependency
It is important to remember that the Charter recognizes dependency as a disability and prevents employers from dismissing employees on the grounds of addiction. On the contrary, it requires that employers accommodate employees affected by addictions. This obligation ends in the presence of undue hardship, when the employer can demonstrate that he/she has made genuine efforts to attempt to accommodate the employee and that the employee is not able to perform acceptable work.
In order to avoid sensitive situations, it is strongly advisable that your policies stipulate that employees are obliged to inform you of their dependencies before an accident or a positive cannabis test occurs. Without this stipulation, an employee facing termination or sanctions could attempt to invoke his/her dependency to claim protection against discrimination based on disability under Section 10 of the Charter.
In order to avoid any misunderstandings on the subject, your expectations of your employees, as well the sanctions applicable if they do not respect the workplace policy, must be clear and obvious. Moreover, in order to encourage your employees to inform you promptly, we advise you to specify that employees who voluntary request assistance to treat a dependency before violating your policy will not be subject to disciplinary sanctions.
In addition, we strongly advise you to educate your employees about the different signs of cannabis addiction so that they are able to identify a person in this situation and to be able to provide support. Finally, inviting an employee to talk about his addictions to his immediate supervisor in order to act as quickly as possible and promote the detoxification and reinstatement of an employee, are excellent ways to deal with cannabis addiction.
Drug testing: is it a solution?
You should know that drug tests do not allow you to determine with certainty that an employee is able to work because they do not indicate to what degree the person is intoxicated or when he or she last consumed the drug. It is difficult to distinguish prior consumption that no longer has an effect on the employee’s abilities from same-day consumption.
Additionally, drug tests are highly regulated, and you cannot subject your employees to these tests as you see fit because they violate privacy rights, as well as the right to physical integrity. These tests are very intrusive for the person and in addition to cannabis consumption; they may reveal other much more personal information. Nevertheless, it is possible to violate these Charter-protected rights in certain specific situations.
For example, it is possible to ask for a drug test in these situations:
- Impairment : The employer has reasonable and serious grounds to believe that his/her employee is impaired as a result of cannabis in the workplace.
- After an accident/incident : Following a serious workplace accident or incident, where the employer has reasonable and serious grounds to believe that cannabis was involved.
- Following addiction treatment : When an employee returns to work following a detoxification or an absence related to the consumption of cannabis.
You now have the tools you need to deal with the effects of the legalization of cannabis in your workplace. By following these tips, your policies will be clear and known to your employees, which will allow you to prevent accidents, maintain your company’s reputation, help your employees who have special needs, and ensure health and safety within your workplace.
Reminder
- Be careful: your employment policies must not be biased by prejudices regarding cannabis. On the contrary, they must be based on your employees’ actual ability to perform their jobs properly.
- Communicate your new policies as quickly as possible to allow your employees to become familiar with them.
- Keep in mind that it is possible that certain aspects which your internal policies do not cover may have to be covered according to how a situation evolves.