With recreational cannabis now legal in Canada, the challenge for employers will come down to a delicate balancing act between disciplinary and supportive measures.
Employers will need to take into consideration not only employee productivity but employee privacy, health and safety and their obligations under human rights legislation.
The first step in this process entails updating and expanding existing policies. While there has been a lot of angst on this issue, the updates that employers need to make are actually pretty straightforward. The bigger challenge for employers will be updating their outlook on cannabis and educating both themselves and their workers.
Employers have the authority to prohibit possession and consumption of cannabis in the workplace in the same way they prohibit the use of alcohol during working hours. It is also not permitted to consume medical cannabis in vehicles. Workplace usage policies should ensure expectations are clearly spelled out with specific reference to cannabis and cannabis-related products and include disciplinary measures and the consequences of cannabis impairment at work (application of progressive discipline, suspension and termination for impairment at work), as well as include supportive measures, such as support services, accommodation options, education and prevention.
Safety in the workplace
Recreational cannabis at work should be treated like any other controlled substance, such as alcohol. Given that employers are responsible for the safety of all their employees, they have the right to enforce a zero-tolerance policy against intoxication or impairment in the workplace. Clear policies assist in applying rules consistently and provide managers the tools to effectively address potential issues.
Employees who need to cross the border for business purposes need to understand that admitting to recreational cannabis use could result in them being banned from travel to the U.S. for life unless they are able to obtain an annual waiver, which is costly and time consuming.
Working for a cannabis business or having other involvement, such as being an investor, may also result in being prohibited from crossing the border into the U.S.
Section 212(d)(3)(A)(ii) of the Immigration and Nationality Act provides the attorney general with the authority to waive nearly all grounds of inadmissibility for aliens seeking admission without a visa directly at a U.S. port of entry. Applicants for admission who are eligible for this waiver must submit a Form I-192 and its required documents in person directly at a designated port of entry or preclearance office. The application will then be forwarded by the port to the Admissibility Review Office, which functions under the auspices of U.S. Customs and Border Protection. Currently, such applications are taking at least four to 12 months to be adjudicated by the ARO.
The courts consider drug dependency to fall under the protections provided by human rights laws and employers accordingly have a legal duty to accommodate a disability. However, the duty to accommodate applies to medical cannabis use, and just as there’s no duty to accommodate recreational alcohol use that falls short of a disabling alcohol dependence, there’s no legal duty to accommodate recreational cannabis use that falls short of a disabling drug dependence.
Some of your company’s employees may have already obtained authorization from their health-care provider for cannabis use to treat a medical condition(s). These employees still bear the onus to come forward with a request for accommodation. This type of disclosure triggers an employer’s duty to accommodate that employee’s disability under human rights legislation. Employers need to follow the usual path to show that they have correctly followed the accommodation process and arrived at the correct result, all while balancing practical and operational considerations and parameters.
The Canadian Human Rights Commission recently released a guidance document entitled: Impaired at Work: Guide to Accommodating Substance Dependence. Its five-step process is applicable to all employers.
Wendy Hulton is a partner in Dickinson Wright’s Canadian Employment Law Group.