With the legalization of recreational cannabis this past October, several questions remain regarding the challenges this legalization brings to the workplace. Indeed, concerns remain on how to reconcile one’s rights and freedoms, with the employer’s obligation to ensure everyone’s health and safety in the workplace. While federal law provides little to no framework for the implications of cannabis use in the workplace, provincial law prohibits cannabis use only in specific places, such as health and social services centres. The right of employers to manage their staff is therefore given much latitude.

Although the legal use of cannabis for recreational purposes is new, we can use some of the precedents set by other substances to guide employers in their decisions. A certain parallel can be made with other substances that can induce a secondary state, such as alcohol. In the majority of cases, if an employee reports intoxicated for work, he or she will rightfully so, be subject to disciplinary measures, ranging from a simple warning to a full dismissal, depending on the severity of the situation. What parallel can be drawn if the same situation arises but with cannabis?

Knowing that not all issues are resolved, as an employer you can still take concrete action. This action can be done in two steps.

As a first step, it is essential to have a clear “zero tolerance” policy in the workplace. However, this policy must be tempered. Firstly, this policy must be compatible with medical use of cannabis. Secondly, “zero tolerance” cannot imply automatic dismissal, as drug addiction constitutes a handicap within the meaning of section 10 of the Quebec Charter of Rights and Freedoms.

This is where the employer’s duty to accommodate an employee who is either dependent to such substance or has a medical need comes into play. It is however understood that such accommodations cannot represent undue hardship for the employer.

As a second step, it is advisable to raise awareness among your employees about the dangers to which they are exposing themselves, both in terms of discipline and workplace safety, should they use cannabis at the workplace. This danger concerns not only their own well-being, but that of their colleagues as well.

What about the possibility of administering screening tests? On one hand, these tests do not have the same accuracy as those detecting alcohol. It is possible that a subject test positive while no longer having any symptoms altering his condition. On the other hand, screening tests cannot be imposed purely arbitrarily, as they harm one’s physical integrity and, more generally, one’s privacy. These tests, although possible, may be administered in specific situations.  Such cases may be in the course of an investigation following an accident, or from having serious and justifiable suspicions of cannabis use in the workplace.

This article merely scratches the surface of the issues which may arise from cannabis use at the workplace. In order to ensure that you have fair and legally enforceable policies, it is best to consult a lawyer who can find the right solution to your needs.

Me Jean-Philippe Ponce, in collaboration with Valentin Tanasescu, articling student

Ponce Lawyer Inc.

This article does not constitute legal advice, to obtain a solution adapted to your needs, please consult a lawyer

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