Cannabis in the Workplace
What is the Law?
When cannabis first became legalized in Canada in October, 2018, this posed a unique situation for business owners and managing their staff. There are many unknowns when it comes to cannabis since, though the substance has been around for decades, this is the first time it is legal to purchase and carry within Canada, plus since it is still quite new, it has yet to be tried by the courts in any way. Cannabis use can still be restricted, which is very similar to the framework of tobacco and alcohol, and very similarly, the same way that you are not able to walk down the street drinking a beer, you cannot walk down the street smoking cannabis. The Cannabis Control Act states very clearly that in PEI, persons must be over the age of 19 to purchase, possess (up to 30 grams on your person), and cultivate recreational cannabis from a provincially regulated distributor, and consumption must be within a “private dwelling”. Currently, the only forms of cannabis that are being sold within these provincially regulated stores are the dried flower, while there are plans in the works for cannabis infused foods, or “edibles”, expected to become legalized late in 2019, they are currently not permitted to be sold within the provincial government’s stores.
The next section of the Cannabis Control Act speaks to where consumption is allowed. As I mentioned above, consumption must be within a “private dwelling”, which means that you must either be the owner of the property, or have permission from the owner/landlord to consume cannabis on their property. The Act also prohibits the smoking of cannabis in public places where tobacco smoking is also prohibited (i.e. parks, restaurants, etc.). In simple terms, if you are not the owner of a property/have not obtained permission to consume by the property owner, or you are in a public place, you are not allowed to consume cannabis there and are subject to penalties in accordance with the Cannabis Control Act.
How do you manage this within the workplace?
When it comes to recreational cannabis, you should consider implementing a policy as you most likely already have for alcohol or other drugs. Employers must take every reasonable precaution for the safety of their employees, to comply with Occupational Health and Safety legislation. Plus, employees also have a duty to arrive each day, fit for work, and remain that way. Typically when creating a policy that could lead to disciplinary measures, it is always considered good practice to have the employee read/understand it, sign, and date the policy, and then it is added to their personnel file for future reference. This should then be reviewed, and resigned by the employee annually to ensure compliance. If an employee is found to have breached this policy, they are then subject to disciplinary measures as per the policy statement.
A Duty to Accommodate
When it comes to medical use cannabis, this is handled very differently from recreational cannabis in the workplace and so the recreational cannabis regulations do not apply. In accordance with the Human Rights Act, employers have a duty to accommodate to the point of undue hardship for a medical cannabis prescription or for a case of drug addiction/dependancy. There is no specific framework for handling these exceptions for cannabis, and so it is a handled in a case-by-case manner. Before deciding on a plan of action, the employer needs to gather all of the facts first. Employees also need to understand that if they need an accommodation made, they need to approach their employer/supervisor and inform them of this prescription/dependancy before they begin consuming cannabis during work hours, and then they create a plan that will work for both parties. It would also be considered a good addition to your workplace cannabis policy to have a section state that for medical cannabis, the employee needs to approach their supervisor to see if there is an accommodation that can be made prior to consuming during work hours.
Though the employee may have a specific vision on how they want to proceed with their medical prescription/accommodation in the workplace, it is actually the employer who makes the final decision on how the accommodation will be made and they must look at every measure in their attempt to accommodate and the end result must be reasonable and practical. The employer will be required to engage in a conversation with the employee to obtain information including a doctor’s note detailing the timing and form of dosages, and the impact of the medication on their ability to function safely, effectively, and efficiently in the workplace. It is also important to note that medically authorized cannabis users must follow the regulations under the Smoke-Free Place Act.
At what point does an Employer hit undue hardship when attempting to accommodate?
The answer to this question will vary depending on the role of the employee who would disclose their medical needs in advance. Essentially, undue hardship means to the point that the Employer could face a loss or severe implications due to the individual who has requested an accommodation for their medical use of cannabis. Undue hardship can include, but is not limited to, unreasonable financial costs to accommodate the employee, health and safety concerns, or problems of employee morale.
In certain cases, it may not be possible to make an accommodation for an employee due to the specific functions of a position. These types of positions are considered “safety sensitive” and is a position in which incapacity due to drug, alcohol or medication impairment could result in direct and significant risk of injury to the employee, others, or the environment. Some examples of safety-sensitive positions include:
- Taxi drivers
- Heavy equipment operators
- Kitchen staff
- Tour bus operators
- Ride attendants
While these are just a few examples listed above, there are many more occupations that could fall under this category. The most common being positions that carry responsibility over other people or utilize equipment that could become dangerous if handled improperly.
Author: Brysan Cumming, TIAPEI HR Advisor
This project is funded in whole or in part by the Canada/Prince Edward Island Labour Market Development Agreements.