Recreational cannabis will be legal in Canada in two days: October 17, 2018. Adults who are 19 years of age and older will be permitted to legally possess, share, purchase and grow limited quantities of cannabis for personal use in British Columbia. This will add some level of increased complexity for employers, but in some senses does not change very much.
Cannabis Impairment in the Workplace
Cannabis impairment in the workplace is not a new issue for BC workplaces.
Provincial statutes such as the Workers Compensation Act (“WCA”) and the Occupational Health and Safety Regulation (OHSR) have long placed constraints on the impairment of workers, independent operators and members of the public in the workplace. The legalization of recreational marijuana should not change these constraints, but does create unique considerations.
What are my Rights and Obligations as an Employer?
Despite the legalization of recreational marijuana, employers are still entitled to require employees to report to work and perform their duties sober and without impairment.
A worker is obligated to ensure their ability their ability to work without creating risk to the health or safety of themselves or another person is not impaired by alcohol, drugs or other causes (WCA, s. 116(2)(d)). A worker must also advise their employer if their ability to safely perform their work is impaired for any reason, and to not knowingly do work when their impairment may create an undue risk to themselves or anyone else (OHSR, s. 4.19-4.20).
Employers are obligated to not assign impaired workers to activities where their impairment may create an undue risk to the worker or anyone else, and to ensure that workers whose impairment endangers the worker or anyone else, do not remain at the workplace (OHSR, s. 4.19-4.20).
Even independent operators and members of the public must not remain at a workplace if their behavior is affected by a substance so as to create an undue risk to workers (OHSR, s. 4.20).
In this regard, employers are responsible for the safety of their employees and workplaces. If an employee is impaired and poses a risk to other employees, the employer must regulate the workplace accordingly.
When is a Worker “Impaired”?
It is not uncommon for employees to have a single beer or glass of wine at lunch, and return to the workplace to continue their duties. Similarly, an employee may partake in recreational cannabis that may have lasting effects that continue with them into the workplace.
As briefly canvassed above, an employer is entitled to maintain an impairment-free workplace. The million dollar question is determining when an employee using cannabis in the workplace may be considered “impaired”. The reality is there is likely not yet a clear answer.
One solution for employers amidst this ambiguity is to implement and enforce a zero-tolerance policy, prohibiting drug and alcohol use in the workplace.
Zero-tolerance policies are still enforceable in the face of marijuana legalization. However, such a policy would need to be clearly established, communicated to employees and followed consistently. It must also account for human rights considerations, as discussed below.
Marijuana Use and Human Rights Considerations
The ‘duty to accommodate’ is a legal requirement arising out of human rights law that applies to most employers in BC. Where a barrier exists, or a policy or practice has adverse consequences on an individual in a protected group, the law says that the employer should reasonably accommodate that individual’s difference provided they can do so, without incurring undue hardship, or without sacrificing a bona fide requirement of the job.
It is possible that a conflict can arise between an employer, who is required to regulate the workplace, and an employee who suffers from marijuana-related addiction issues, or requires the use of medical marijuana on account of an illness, injury, and/or mental/physical disability.
In such cases where an employer knows, or ought reasonably to know, that an employee may be impaired at the workplace, the employer has a duty to inquire into why the employer is impaired prior to making an adverse decision against the employer. If there is a relationship between the marijuana use and a protected ground of discrimination (e.g. disability or addiction) under human rights law, the employer must make attempts to accommodate the employee without incurring undue hardship or sacrificing a bona fide requirement of the specific job.
What this means will vary on a case-by-case basis.
Certainly, an employee will not have a right to be impaired in the workplace, or to compromise employee safety. Conversely, an employer will have to be careful about infringing an employee’s human rights by making a decision that adversely affects the employee without first fulfilling its obligations under human rights law.
Policies and Procedures for Recreational and Medical Marijuana
We strongly recommend that employers develop drug and alcohol policies and procedures in the workplace to ensure that recreational and medicinal marijuana use is incorporated and openly addressed. Developing a clear impairment policy that takes into account what is acceptable, the consequences of non-compliance, and grounds for termination can help employers manage their obligations to ensure workplace safety. Policies and procedures should be clearly communicated and applied consistently.
If you are interested in learning more about employment law, Kuhn LLP is teaching Employment Law 101 on October 24, 2018. Key learning objectives will be:
- Hiring – discrimination, BC Human Rights Code
- Contract – essential elements, specific terms and termination
- Understanding obligations set out in the Employment Standards Act
- Termination – with/without cause, methodologies, options
You can sign up for this course here.
This article was written by Ian Moes and Matthew Potomak, lawyers, who practice in employment and human rights law with the law firm of Kuhn LLP. This article is only intended as a general guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this matter or other employment and human rights matters, please contact us at 604-864-8877.