The legalization of recreational cannabis poses a significant management challenge to employers. Here are the answers to five burning cannabis questions employers are asking us.
1. Must employers treat recreational cannabis and alcohol the same way, given both are legal?
While both substances cause impairment, cannabis and alcohol are distinct. Employers can prohibit the use of cannabis the same way they can prohibit the use of alcohol on their premises during working hours, or even otherwise, as appropriate, depending on the position and work environment (e.g., while employees are on call). Employers may allow a limited amount of alcohol consumption for off-duty work-related events, while prohibiting cannabis use at the same function. It is within the authority of an employer to set the rules.
2. Is ingesting edible cannabis different from smoking cannabis?
Both consumption methods have impairing effects of concern to employers. The intoxicating effects of ingesting edible cannabis, in comparison to smoking dried cannabis, generally take longer to be felt—up to two hours according to the Canadian Centre on Substance Use and Addiction Centre (CCSA). This delayed onset can make consumers think it didn’t work and take more, heightening the risk of overconsumption. The high from ingesting edible cannabis also typically lasts longer—up to 12 hours, according to the CCSA. The residual impairing effects of cannabis in both forms, which may last for more than 24 hours, are also of concern to employers, particularly those who employ users in safety-sensitive positions.
3. Are employers meant to have different expectations and policies for safety-sensitive and for non-safety-sensitive positions?
All employees are expected to report to work and remain fit for duty and to perform their job in a safe manner, unimpaired by substances of any kind. But the risks of failure to do so by an employee in a safety-sensitive position typically exceed those by an employee in a non-safety-sensitive position. The additional risk can justify a greater employer intrusion into employee privacy and autonomy. Employees generally have a right to consume cannabis in their off-time and to keep this private—unless or until it affects the employer’s legitimate interests, including the obligation to provide a safe workplace. Employees in safety-sensitive positions can therefore be subject to drug and alcohol testing (pursuant to a well-drafted policy) in certain circumstances; those in non-safety-sensitive positions generally cannot.
4. Does the duty to accommodate extend to cannabis?
Under human rights laws, employers have a legal duty to accommodate a disability: a duty to arrange an employee’s workplace or duties, if this can be done without undue hardship, to enable the employee to do their work. Employers have a duty to accommodate both substance dependency and use of medically prescribed or authorized drugs (including cannabis), depending on the circumstances. However, just as there’s no duty to accommodate recreational alcohol use that falls short of alcohol dependence, there’s no duty to accommodate recreational cannabis use that falls short of a drug dependence.
5. What testing methods and limits can we put in a policy to determine when an employee is not safe to work?
Unlike with alcohol, there’s no established metric or testing method to determine present impairment for cannabis that can distinguish recent from chronic or earlier use. However, in safety-sensitive workplaces, employers can develop a policy which establishes “cut-off” levels for cannabis and testing methodologies that are legally accepted. Rigid constraints exist on the circumstances in which an employer may conduct drug (and alcohol) testing. Employers should do so only in accordance with a well-drafted policy. Any test that is then conducted constitutes part of the overall evidence to demonstrate the performance deficits of the employee working in a safety-sensitive position. Employers should continue to monitor the rapidly evolving area of cannabis impairment and implement frequent policy reviews and updates.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2020. All rights reserved.
Stephanie Sheppard is a partner and leading labour and employment lawyer with McInnes Cooper in St. John’s. She provides advice on the full spectrum of labour and employment matters, from collective agreement interpretation, labour relations, employee discipline, employment contracts, workers compensation appeals, and human rights issues.
Contact Stephanie at
stephanie.sheppard@mcinnescooper.com or 709.724.8235