What Does Legal Marijuana Mean for Employers in Canada?

What Does Legal Marijuana Mean for Employers in Canada?

On October 17, Canada became the second country in the world after Uruguay and the first developed country to legalize the sale and consumption of recreational cannabis. Under the new law, adults will be allowed to possess up to 30 grams of dried cannabis—available for purchase only from government stores—and in most provinces will also be allowed to grow a maximum of four marijuana plants per household. Many of the details of regulating legal marijuana have been left to Canada’s 13 provinces and territories to decide for themselves, however, leading to potential variation from province to province in key regulatory issues such as the rights of employees who use the drug and their employers.

Smoking marijuana in workplaces remains illegal (as is smoking of any kind), but questions remain over whether Canadian organizations will be able to regulate their employees’ cannabis use off the clock and off the worksite. Workers in some fields will still face strict standards, the New York Times explains:

Employees who handle dangerous products or operate heavy machinery may face stepped-up or new drug tests. Airline pilots face tough restrictions on how near to the start of shifts they may use marijuana. The armed forces will have specific orders for its members and the Calgary Police Service has banned pot use by off-duty officers. The Royal Canadian Mounted Police and Toronto’s police force will ban most officers from using marijuana within 28 days of reporting for a shift.

Impending legalization had raised anxieties among employers in safety-sensitive industries, who were unsure of what measures they would legally be able to take to prevent employees from working while high. Part of what makes these claims difficult to adjudicate is that there is no simple metric for measuring marijuana intoxication; the chemicals in cannabis remain in the body for several weeks after it is used, and current drug testing protocols can’t determine precisely whether an individual smoked an hour ago or two days ago.

It’s also not agreed upon what level of marijuana intoxication makes unsafe to perform certain tasks, as opposed to alcohol, where blood alcohol content can be used to determine whether someone is too drunk to drive. That’s why safety-sensitive employers like airlines and transit authorities have adopted a cautious approach and put tight restrictions on their employees’ marijuana use.

In office jobs, Quartz’s Lila MacLellan notes, “the message is that essentially, nothing has changed: You’re expected to show up sharp enough to perform on the job. Unless you have a legitimate prescription for medicinal marijuana, the workplace does not need to accommodate your cannabis habit.” The question that remains is what rights employers will have to assess whether employees who appear impaired at work actually have been using the drug:

[Mario Torres, an employment lawyer with Brazeau Seller Law in Ottawa,] explains that there is no single answer. In the end, employment law is contract law, he says, so workplace drug testing, which is generally considered a human rights violation in Canada, would only be possible if employees have already signed an agreement agreeing to it under specific circumstances.

“The employer does have the right to manage their operations as they see fit, and because they see fit to manage the workplace in a safe and healthy manner, they can discipline employees for a breach of contract,” says Torres.

This is about liability, not morality, he says. In some workplaces, rather than have an accident occur because a policy was too lenient, a company would rather have employees take action against an organization to prove that its policy is overly prohibitive, perhaps a violation of a person’s rights and freedoms. Then an outside decision-maker might force management to loosen restrictions.