Cannabis legalization calls for drug policies

How organizations can adapt to monumental shift in legal landscape
Tuesday, October 23, 2018
By Doug MacLeod

On Oct. 17, 2018, the federal government legalized the sale of recreational cannabis in Canada. This is a monumental shift in the legal landscape that may have organizations such as property management companies wondering how they can adapt to this change.

The short answer is to implement a drug policy.

Recreational cannabis becomes legal

Bill C-45, or the Cannabis Act, establishes a legal framework for the legal sale and possession of cannabis. The Ontario government and other provincial governments have passed laws that permit the legal sale of cannabis as of Oct. 17, 2018. The Ontario Human Rights Commission has recently issued questions and answers on cannabis and the Ontario Human Rights Code.

This change in the law raises many issues including health and safety considerations, medical marijuana use in the workplace, human rights issues, and the complex area of drug testing.

What follows is a discussion of these issues.

Key components of a drug and alcohol policy

There is not a one-size-fits-all drug policy. Every workplace is different. For instance, a draft policy for Toronto Police Service proposes banning officers from consuming recreational cannabis within 28 days of reporting for duty. This policy has been debated as members of the Toronto Police Union oppose this restriction, claiming it is impractical and essentially an absolute prohibition. The RCMP, the Canadian Armed Forces and other police forces throughout Canada have adopted different policies.

The following are possible components of a drug policy:

1. Background information and expectations

Provide some background information on why the substance abuse policy is being written or updated, starting with the new cannabis laws.

All staff should understand what is expected of them regarding possession of cannabis in the workplace and impairment while on duty.

It is recommended that employers make it clear that cannabis legalization does not change the fact that recreational marijuana use at the workplace is not permitted. Comparing recreational marijuana to alcohol can help illustrate that just because using a substance is legal does not mean it is permissible at the workplace. Just as staff know to refrain from drinking alcohol at the workplace, staff should understand that they cannot use cannabis at work or be impaired while working.

2. Policy statement

The policy should outline an organization’s commitments to its employees, clients, and third parties. An organization’s two main commitments are to provide a safe and healthy workplace, and to continue complying with the organization’s duties under Ontario’s Human Rights Code.

3. Provide definitions and scope

Define terms that are used throughout the policy so that everyone understands what they mean. Some important terms to consider defining include: “impairment,” “fit for work,” “safety-sensitive positions,” and “undue hardship.”

The policy should make clear where it applies and to whom it applies. Depending on the nature of a business and where people conduct business, it is important to outline expectations when it comes to travelling, off-site locations, and attending company-sponsored functions.

4. Outline roles and responsibilities

The policy should set out the responsibilities of the company, management, and employees.

The company should be responsible for making employees aware of the policy and enforcing it. Managers should be responsible for understanding and following the requirements of the policy, encouraging employees to report incidents of substance abuse, and promptly reporting all complaints or incidents of substance abuse. The policy should also make clear that anyone who reports a substance abuse incident in good faith will not be punished for it.

Some additional considerations

Remember that developing a policy can take time. Education is an integral component of the process. Staff will need training to understand what is expected of them at work.

When developing a substance abuse policy, it is a good idea to collaborate with the Joint Health and Safety Committee or the Health and Safety Representative, if either exists in the workplace.

Policies addressing the possession and use of recreational cannabis in the workplace have to find the delicate balance between outlining acceptable employee behaviour while maintaining employee privacy.

Human rights versus health and safety

Since 1999, medical use of marijuana has been legal in Canada and is currently regulated under the Access to Cannabis for Medical Purposes Regulations. The duty to maintain a safe work environment must be balanced with an employer’s obligation under human rights legislation to accommodate an employee with a disability to the point of undue hardship. This duty may include permitting an employee to work while under the influence of marijuana. However, employers must continue to meet their obligations under the Occupational Health and Safety Act, so this balancing act is particularly important in safety-sensitive workplaces.

Employers are required to respond to marijuana-related accommodation requests on a case-by-case basis, taking into consideration the employee’s medical needs and the organization’s obligations under health and safety laws.

Drug testing

A controversial issue facing employers is the question of how to detect cannabis impairment. Introducing drug testing in the workplace is very controversial and often leads to litigation. In fact, an employer should expect that any random drug testing policy will be legally challenged. In these cases, the onus to justify the need for a random drug testing policy is on the employer.

Any testing protocols must show current impairment; not past use.

Ultimately, understanding an employer’s rights and obligations under the federal Cannabis Act and related provincial legislation is the key to developing an effective substance abuse policy.

Doug MacLeod of the MacLeod Law Firm limits his law practice to employment law. He has been advising Ontario employers including property managers for more than 25 years. He can be reached at 416-317-9894 or [email protected]

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