Canada's Lessons Learned from Legalizing Cannabis

​Canadian employers have been concerned about workplace safety following the legalization of cannabis for recreational use in October 2018 and the arrival of edible products in the country's retail market in December 2019.  While Canadians now can legally consume cannabis products, employment and labor lawyers say this does not give employees the right to use the drug at work.

More than a year after legalization, experts reflected that while it has been a smooth transition, challenges remain—especially if an employee shows up to work impaired.

Ryan Anderson, an attorney with Mathews Dinsdale and Clark in Vancouver, British Columbia, urged employers to talk about the need for safety in the workplace. "There are consequences of not meeting safety expectations, especially in safety-sensitive positions," he said.

The Canadian Centre for Occupational Health and Safety defines a safety-sensitive position as one that, if not performed in a safe manner, can cause direct and significant damage to property and injury to the employee, others in the area, the public and the immediate environment. Safety-sensitive roles are often found in the construction, medical, manufacturing, natural resources, transportation and warehousing industries, among others.

Introduction of Legal Edibles

Edibles are cannabis-infused products, including beverages, chocolates, gummy candies and baked goods.

According to Health Canada, edible cannabis products will have, at most, 10 milligrams of THC, the chemical responsible for most of the drug's psychoactive effects.

Monty Verlint, an attorney with Littler in Toronto, said legalized edibles' lack of smell makes it easier for employees to hide and use the drug discreetly on the job. An employee may become suddenly impaired in the workplace long after having consumed edibles, he noted.

"Employers must be more vigilant when searching for signs of impairment," Verlint added. The Canadian Human Rights Commission says an impaired person may smell of alcohol or drugs, may have glassy or red eyes, may walk with an unsteady gait, may slur words, and may have poor coordination.

The Canadian Centre on Substance Abuse and Addiction reported that the effects of edibles could last up to 12 hours, with residual effects lasting up to 24 hours.

"The real challenge is there's not a universal testing system for cannabis," Anderson explained. "From a legal perspective, technology cannot measure cannabis consumption, as testing for THC is not consistent from person to person."

Employers and human resource professionals are exploring technological options, such as apps, to test for overall impairment, noted Shane Lamond, legal research associate at Blue J Legal in Toronto.

Drug Testing in Canada

Unlike in the United States, pre-employment drug testing is generally not permitted in Canada, except in limited circumstances, and most Canadian employers do not have a drug-testing policy, Verlint said.

Each Canadian province has its own legislation regarding testing for drugs. In Alberta, the courts have been less protective of individual privacy rights and have allowed drug testing in the oil and gas sector. Most companies in Ontario and British Columbia opt not to test for drugs, adhering to human rights legislation and privacy concerns.

Bonny Mak, an attorney with Fasken in Toronto, said random testing is not permitted in Canada unless an employee agrees to a regime of random testing as part of an accommodation or a return-to-work plan following treatment for addiction. An employer in a safety-sensitive work environment must establish that there is a serious problem with drug use in the workplace to drug-test. "This is rare and must be based on evidence; rumors and anecdotes are not sufficient," she added.

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Detection Training and Education

Employers may need to revisit workplace policies that address drug and alcohol use to include cannabis, Anderson explained, but they should pay attention to two competing obligations. 

On the one hand, employers have a duty under Canada's Human Rights Code to accommodate employees with disabilities—especially those who consume medical marijuana to help with mental health and physical pain, Anderson noted. On the other hand, employers must take reasonable precautions to ensure the safety of their workplaces, as they have the right to prohibit impairment on the job.

Experts say employers and HR professionals should take a renewed approach to training and education:

• Create or update safety policies. Verlint said employers should remind employees of their obligations under the policies.
• Offer training to detect impairment. Mak suggested managers need training to detect impairment through physical symptoms. Verlint added that supervisors and managers should document signs of impairment to justify testing and disciplinary action, if applicable. 
• Educate staff. Anderson recommended weekly workplace safety meetings.

"When it comes to cannabis, employers and HR should take a preventive approach rather than a reactive approach," Verlint said.

Catherine Skrzypinski is a freelance writer based in Vancouver, B.C.