Cannabis: Employer considerations in a changing landscape
On October 17, 2018, Canada will legalize the distribution, access to and use of recreational cannabis. This significant change brings with it uncertainty for the general public, as well as some employers. This article addresses some aspects of what this change means to employers in Canada, as well as addressing emerging developments related to medical cannabis, which has been legal since 2001 but is getting increased attention due to the pending legalization of recreational cannabis.1
How did cannabis become legal?
The federal Cannabis Act (Bill C-45) received Royal Proclamation earlier this year and the federal government subsequently announced October 17th as the official date of legalization. The federal Cannabis Act sets out the general standards to be applied in the manufacture, distribution, access to and use of cannabis. All of the provinces, which are responsible for the particular rules in their individual jurisdictions, have introduced legislation that addresses how cannabis will be made available to the public. Most provinces are following similar standards to those established in their province for the sale of alcohol.
What is legal?
The provincial rules vary but generally speaking:
- Legal age for cannabis use will be 19 (18 in Alberta and Quebec)
- Able to legally purchase fresh or dried cannabis, cannabis oil, and seeds and plants for cultivation. Other products, such as edible cannabis, will be permitted for legal sale within one year
- Permitted to grow up to 4 cannabis plants in home
- Possess and share (with other adults) up to 30 grams
- Consumption prohibited in most public places (for example, public parks and sidewalks)
Recreational versus medical
The legalization of recreational cannabis provides adults with the option to legally consume cannabis for non-medical reasons. This is a personal choice similar to the choice to consume alcohol, which is readily accessible and the recreational use of which is culturally accepted. The fact that cannabis has been illegal, and yet still available in most areas, means its legal use will likely continue to carry some stigma.
Onus on employers to ensure a safe workplace
It is important to recognize that while medical cannabis has been legal since 2001, the issue of recreational access and use brings with it uncertainty for both employees and employers. This requires employers to place a strong focus on using workplace policies to control cannabis use, as they can no longer rely on the argument that it is an illegal substance. However, it is important to recognize that the underlying issues that recreational cannabis use may bring to the workplace are not new. Employers have been dealing with the implications of alcohol, cocaine, opioid and amphetamine use for years. Although recreational cannabis will become legal to access and use, recreational (and medical) cannabis in the workplace should be subject to workplace policies and require employee support like any other substance that can cause impairment. Legal does not mean acceptable in the workplace.
No accommodation required for recreational cannabis
Legalization of recreational cannabis does not change the status quo; there is no requirement for employers to accommodate the use of recreational cannabis by employees. Employees who choose to use recreational cannabis, much like those who use alcohol, need to consider the impact of this use on their fitness for duty in the workplace.
Employers should review their existing workplace policies and procedures to ensure they are prepared for potential issues which may arise pursuant to legalization of recreational cannabis. For example, a policy that relies on a prohibition against “illegal drugs” in the workplace may need revision to ensure it accurately addresses cannabis once it is legal. Further, the definition of “workplace” may also need to be examined, to reflect employees who drive company vehicles, work remotely, or who do not report to a work location.
Accommodation for medical cannabis
Medical cannabis has been legal in Canada since 2001 and is currently regulated under the federal Access to Cannabis for Medical Purposes Regulations (ACMPR). For employers, there is an established duty to accommodate, to the point of undue hardship, an employee’s use of medical cannabis when it has been authorized by a medical practitioner to treat an illness or disability.
By adopting, communicating and following a proper drug and alcohol policy, employers can give themselves a better chance of demonstrating that they have met the requirement to accommodate the use of medical cannabis to the point of undue hardship. Workplace policies should require employees to inform the employer of medical cannabis usage and to request accommodation.
Once informed of an employee’s use of medical cannabis, the employer may request medical documentation that speaks to the employee’s ability to safely carry out assigned duties. This is the same approach which should be in place for the use of any prescribed medication (such as opiates for pain) that is mood-altering or has an impact on the individual’s capacity to fully or safely complete their duties.
Employers should review their drug and alcohol, disability management, and accommodation policies to ensure they are consistent in how they address disclosure requirements.
Testing for impairment
There is no consensus on safe limits for consuming cannabis. Unlike with alcohol, there is no general agreement on what constitutes ‘impairment’. Further, it is possible for the active ingredient in cannabis (THC) to be detectible in an employee’s system many days after use.
Human rights and arbitration case law in Canada deals with testing for impairment in the workplace in the context of safety-sensitive positions and dangerous work environments. Generally, due to the potential to intrude on an employee’s privacy, drug and alcohol testing will only be justified where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work.
It is generally acceptable for employers to require testing following a workplace incident or accident where impairment is suspected. Post-incident or ‘reasonable cause’ testing is not to be confused with ‘random’ testing.
Random testing by employers in the workplace in Canada is controversial and the source of continuing legal action. The TTC in Ontario successfully initiated a random testing program for safety sensitive positions in 2017, after the union was denied a temporary injunction pending resolution of the arbitration. Suncor in Alberta was initially successful in launching a random testing program but the union was successful in obtaining a temporary injunction to prevent the introduction of testing pending resolution of the arbitration.
With the legalization of recreational cannabis, more employees may be at risk of abusing or becoming dependent. Absenteeism, lost productivity, accidents, turnover, recruitment and training are only a few of the costs organizations might bear if substance abuse is not identified and treated. Additionally, employers remain responsible for the safety of all employees in the workplace, so it is even more important than ever, to have clear substance abuse policies and processes, along with supportive employee-focused programs.
Employees may require access to addiction treatment programs, post-treatment recovery programs and other programs focusing on awareness and skill development related to psychological, emotional and situational triggers that lead to relapse. Employers will need to ensure availability of programs supporting recovery, accommodation and return to work. Motivated employees may seek out confidential support through an Employee and Family Assistance Program (EFAP). There are also options that involve employer referral and monitoring, which can be important tools when an employee is not motivated to make changes and the workplace is impacted by the employee’s substance use.
Benefit plan coverage
The legalization of recreational cannabis in October 2018 is a ‘hot topic’ but it is important to remember that medical cannabis has been legal since 2001. It was also added to the Medical Expense Tax Credit (METC) list in 2015 and became eligible under Health Care Spending Accounts (HCSAs). Although there is no requirement for a benefit plan to include coverage for medical cannabis, carriers are beginning to provide product offerings under the extended health benefit, usually subject to prior authorization and for limited conditions.
Organizations should determine if adding medial cannabis aligns with their human resources philosophy and objectives. As part of this determination, employers may also wish to consider:
- the cost of adding medical cannabis to a benefits plan
- the appropriate policies and processes which will be required
- the insurer offerings which match the organizational needs, and
- how the organization will communicate decisions about medical cannabis to employees.
Employers continue to grapple with the issues arising from medical cannabis and now the legalization of recreational cannabis. Employers should review their human resources policies and communications with both employees and people managers to ensure that they are adequate to cover these emerging issues. With continuing moves by insurers to offer medical cannabis coverage, employers will have to consider whether to include such coverage in their benefit offerings. Finally, employers should review their employee support solutions and consider whether they are adequate to deal with all of the issues from both legal and illegal substance use. Morneau Shepell’s legal, benefits consulting, absence and disability management and LifeWorks teams will continue to work to support our clients with a full spectrum of services and solutions relating to these issues.
1 Although the terms “cannabis” and “marijuana” are commonly used interchangeably, the term “cannabis” is more likely to be used in formal contexts. “Cannabis” is also gaining popularity due to it being seen as less stigmatized than “marijuana”.