Devising A Cannabis Policy For Your Workplace
Cannabis, marijuana, pot or weed, the name does not matter but the law has changed. With the legalization of recreational marijuana across Canada, employers ought to prioritize updating their workplace drug policies to specifically address issues that may arise. According to a report by The Conference Board of Canada, over half of Canadian organizations are concerned about the implications of cannabis legalization in the workplace. However, research by the Human Resources Professionals Association reveals that a mere five percent of Canadian companies currently have a policy that addresses medical marijuana. Common concerns expressed by employers relate to workplace safety, the use of cannabis inside and outside the workplace and impairment or intoxication during work hours. Read on to find out more about the implications of legislative changes and what employers should include in their robust cannabis workplace policies. And know, the Employment lawyers at Kahane Law Office in Calgary can help.
The Legal Status Of Cannabis In Canada
On October 17th, 2018, Bill C-45 an Act respecting cannabis and to amend the Controlled Drugs and Substances Act (the “Cannabis Act”) will become law. The Cannabis Act will, among other things:
- allow adults to grow as much as four cannabis plants per household for personal use;
- permit adults to possess up to 30 grams of cannabis;
- allow individuals who are 18 years of age to purchase and use marijuana;
- enable the provincial governments to devise a regulatory regime for the licensed production of cannabis; and
- create new provisions to address drug-impaired driving.
Can Employees Legally Enjoy Recreational Cannabis At Work?
Employers can set rules against alcohol and tobacco consumption in the workplace. Likewise, employers have the right to devise cannabis workplace policies regulating the non-medical use of marijuana. Specifically, employers should devise clear policies to prevent employees from working impaired and to prohibit the consumption of cannabis during the work day. Work policies should also prevent the sale and distribution of cannabis in the workplace.
What Cannabis Workplace Policies Address?
As each organization is unique, cannabis workplace policies should be tailored to fit the organization. In drafting cannabis workplace policies, you should communicate the extent that your organization will tolerate cannabis use or whether it will adopt a zero-tolerance approach. The Policy should also outline examples of types of behaviours that are unacceptable and cover different forms of consumption ranging from recreational and medical uses of edible products, creams and lotions, and dried cannabis. As there is currently no test to determine if employees are impaired from cannabis, you may want to consider requiring employees to disclose whether he or she has a medical cannabis prescription. Further, the Policy should also set out any penalties that would apply should employees fail to comply.
Penalties For Employees Who Breach Drug Policies?
Cannabis workplace policies should outline disciplinary action against employees who breach it. Penalties could range from a verbal notice to termination depending on the severity of the breach. For example, trafficking cannabis in the workplace should be a serious breach of the Policy. It should be counteracted with severe penalties. In order to promote accountability, disciplinary action should be uniformly applied to all employees who breach the Policy.
Must Employers Accommodate Medical Cannabis?
Under the Alberta Human Rights Act, employers are legally obligated to provide accommodations. These must safeguard against discrimination on the grounds of employees’ physical and mental disabilities to the point of undue hardship. In the same way that employers have a duty to accommodate disabled employees with medical prescriptions, employers have the duty to accommodate disabled employees that use medical cannabis to treat their disability. However, the employer’s duty to accommodate is not without limits. No entitlements exist for employees with medical cannabis prescriptions allowing:
- impairment at work;
- compromise his or her safety or the safety of others;
- smoke medically prescribed cannabis in the workplace; or
- be tardy or absent at work.
When employees with a medical cannabis prescription request for accommodations, employers may provide the following accommodations:
- allow the employee to take frequent breaks to allow them to vaporize their medicine;
- alter the employee’s work duties and responsibilities; and
- move the employee to a less safety-sensitive position.
An employer may request that the employee provide medical information from his or her doctor. They may also request that they seek the advice of an independent medical examiner to determine an appropriate accommodation.
Cannabis Use Prohibition in Safety-Sensitive Workplaces?
Manage safety risks by implementing processes in cannabis workplace policies. These encourage employees to disclose the use of cannabis for medical purposes. For companies that operate in safety-sensitive industries such as construction and transportation, employees who are impaired by cannabis at work may pose severe consequences for employee safety. In such cases, organizations may want to impose a zero-tolerance policy against recreational cannabis use and require employees to disclose if they have a medical marijuana prescription. In order to expressly prohibit marijuana use without discriminating against employees that use medical cannabis to treat their disabilities, employers should demonstrate that sobriety is a bona fide occupational requirement of their safety-sensitive workplace.
How To Manage Problematic Workplace Cannabis Use?
At common law, disabilities include drug dependence. Accordingly, employers must accommodate substance-dependent employees to the point of undue hardship. They also cannot terminate an employee for their inability to perform his or her job. Employers ought to devise a policy that sets out treatment options for employees struggling with cannabis dependence. Adopting consequence-free and confidential processes to allow employees to seek treatment help.
The extent of the employer’s duty to accommodate depends on various factors such as the nature of the employee’s role and the resources of the organization. For example, the employer can require substance-dependent employees to register and successfully complete addiction treatment prior to returning to work. However, if an employee requests that the employer pay for his or her participation in extensive treatment programs, the employer can establish that the financial cost would cause the organization undue hardship.
Assistance with Drafting Marijuana Policies in the Workplace
Drafting workplace policies to address the consumption of recreational and medical cannabis helps employers fulfill obligations to protect the health and safety of its employees. A properly drafted workplace policy mitigates an employer’s risk. The most likely risk is of committing a human rights violation or being liable for wrongful termination. Employers should update or draft workplace policies to address cannabis in the workplace. Kahane Law Office is happy to assist with drafting your workplace policy tailored to your organization. Call us today at 403-225-8810 locally in Calgary, Alberta, or email us directly here.