How do employers handle a cultural and public policy swing that will change Canadian society?
Today, recreational cannabis will become officially legal. The ramifications on Canadian public policy, and specifically employers, are just coming into focus.
First, from an employer’s perspective, there is a significant difference in the way someone can manage medical cannabis (marijuana) in the workplace versus recreational.
The effect on the workplace from now-legal recreational cannabis remains unknown – but employers likely need not unnecessarily change their existing drug and alcohol policies and workplace practices.
Today’s legalization really just puts cannabis on the same playing field as alcohol in the workplace. Wise managers will ensure their policies and practices treat it accordingly.
Like alcohol, employers will continue to have the right to not allow an employee to remain at company workplaces or perform company work whenever there is reasonable cause to believe they are impaired – for any reason.
Employees will continue to be expected to arrive, and remain, fit for work. They are also expected to advise their supervisor of any prescription or non-prescription drugs which may negatively impact their ability to safely perform their jobs – especially those who operate in a safety-sensitive environment.
If they haven’t before, now’s the time for employers to check their existing policies and practices.
They need to ensure they address workplace impairment, from prescription to over-the-counter, illegal drugs – and now-legal drugs.
They should also take into account that recreational cannabis rules are different from the laws around medicinal cannabis. Legal in Canada since 2001, medicinal cannabis users have been afforded protection under human rights codes.
A user with a medical condition or has been shown to have an addiction to cannabis (or other substances) is considered to have a disability. Therefore, employers may have the duty to accommodate them, and the disability, up to the point of undue hardship.
However, this duty to accommodate does not permit that employee to attend work impaired.
Conversely, medical cannabis users have a responsibility to the employer called the duty to disclose. Employees are responsible for not only disclosing cannabis use, but also:
- Providing verification that the cannabis is prescribed or authorized by a healthcare practitioner permitted by federal and provincial law to prescribe its use;
- Providing any additional medical documentation requested for ensuring the safe performance of all job duties;
- Under no circumstances bringing cannabis, or any of its derivatives to the workplace or any sites where company work is being conducted; and
- Fully cooperating with management in ensuring their prescribed use of cannabis does not impact their health and safety, or of those around them, in performing their job duties.
As observers who have been following cannabis legalization policy know, the tentacles of prohibition spread throughout dozens of laws, regulations, and practices.
For example, how does an employer’s duty to accommodate fit against occupational health and safety obligations? Employers will continue to have a duty to provide a safe work environment and take all reasonable precautions to protect the health and safety of employees and others in the workplace.
In short, now’s the time to act on this monumental change. Employers should ensure:
- Drug and alcohol policies address the overall concept of “impairment,” as that policy will be relevant to all sources of impairment, not just cannabis.
- Their staff policies address workplace impairment, from prescription to over-the-counter, illegal drugs and now-legal drugs.
- Their policies include education, testing procedures – and consequences for failure to comply.
- Their policy is consistently applied and enforced.
- They accommodate employees where there is a legitimate underlying disability.
- They do not get hung up on the source of the impairment, but focus on the issue of impairment itself.
- They know the law, keep up to date as cannabis legislation is implemented, and as the courts and tribunals render decisions.
- They widely communicate any changes or updates to existing policies.
Public policy around cannabis will continue to evolve.
What won’t change is the responsibility to ensure the safety of the workplace – and remain committed to prohibiting impairment on the job.
Pamela Bragg has more than 25 years of hands-on executive HR experience inside multinational organizations in a wide range of industries, from construction materials, retail, and transportation, not-for-profit and land management. Her company, Sarkany Management, can be found at sarkanymanagement.com.