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Don’t let the “Pot” call the kettle black: Cannabis Policy and your Business

It now has been 10 months since Federal and Provincial laws changed legalizing the personal use and possession of cannabis, and society appears to still be in tact. Good! But, what about your workplace? Is cannabis use at work viewed the same as alcohol? Have you taken steps to understand the difference between the two intoxicants? Do you have a policy in place to be able to address any potential issues concerning cannabis use at work, should they ever arise? If not these are things you now have to think about.

Aside from recreational uses, which legalization has provided for, there are also situations where an individual has a prescription for medicinal purposes. These are not one in the same and could affect your business differently. Primarily speaking, if an employee of yours uses cannabis for recognized medicinal purposes, then you as the employer, under human rights legislation, may have a legal duty to accommodate the needs of that particular employee.

However, that doesn’t mean that you need to bend-over backwards to see to it that the person in question is permitted to do what they will. Rather, you as the employer should treat medicinal cannabis use by one of your employees in the same way as any other prescription medications that may cause impairment. If your business is operating heavy machinery, then it’s safe to say your employee should not be behind the wheel after having used cannabis.

You as the employer need to balance several interests by ensuring that you’re abiding by your legal duty to create a safe work environment, your putting forward your best efforts to accommodate your employee’s disabilities, all the while respecting the privacy of those persons.

One catch, though, in balancing the noted interests, will be to be sure that the cannabis being used is not simply a C.B.D. product that doesn’t contain any T.H.C., which is the plant’s intoxicant. If a C.B.D. product is being used, then there is no psycho-active component, which would actually impair your employee’s ability to carry-out his or her duties, and there should be no actual cause for concern.

The applicable legislation defines intoxication as when a person’s mental or physical capabilities are significantly affected by liquor, cannabis or any other drug or substance. If you, as an employer, may become aware of your employees making use of medications/medicinal cannabis while at work, be sure to review your policies in an effort to determine if they require such employees to disclose their use of intoxicating medications to you. If any declarations as to workplace use are made, request the prescription; note, though, you as the employer are under no obligation to accommodate illegal drug use.

Useful considerations for employers in today’s Canada will be whether or not to make meaningful inquiries of your employees, give consideration to a zero tolerance policy for safety sensitive positions, adjust your smoking and scent policies, and review your benefits plan to determine what is covered for prescriptions vs. medications.

Yet, what about employees who are recreational users? How can you legally regulate their conduct while at work, in so far as it relates to legal “pot”?

Of course, it goes without saying that employers can continue to expect their employees to show-up sober and ready to work, it remains illegal to be intoxicated in public. Subject to employees’ medical conditions, employers will still be entitled to discipline their employees when recreational use adversely affects their performance, the recreational use violates the law (i.e. when used in public), and an employees’ use and possession, if at the workplace, is contrary to established company policy.

If you have any further questions as to developing your understanding of the use of cannabis and what impairment in the workplace may look like, be sure to you contact your lawyer before taking any steps to discipline your employees, which could end-up doing more harm to your business than otherwise, had you not reached out to your lawyer to discuss your concerns.

Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.

 
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