Canada: Legalized Marijuana Presents Employer Challenges

The global solution for human resource professionals, combines custom research, strategic white papers, country primers, webinars and OnDemand educational programs, and the expert guidance...

By Jeremy Hainsworth

With Canada's introduction of legislation to legalize marijuana April 13, employers need to examine their drug use policies and look at accommodating medical users, legislators and lawyers say.

“The legality of it does not mean it’s permissible in the workplace,” Toronto-based employment lawyer Peter Straszynski of the law firm Torkin Manes told Bloomberg BNA April 13. “It’s not really that dramatic a change.”

The legislation, if passed, would have an implementation date on or before July 1, 2018. Prime Minister Justin Trudeau’s Liberal Party’s 2015 election platform promised removing marijuana possession and use from the Criminal Code of Canada, regulating and taxing it.

Bill C-45 (An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts) was presented in the House of Commons by Justice Minister and Attorney General of Canada Jody Wilson-Raybould April 13. The federal departments of Health, Justice and Public Safety would enforce the legalization.

The bill should easily pass the House of Commons where Trudeau’s Liberal Party has a majority. Passage through the Senate may be more difficult as the Liberals are outnumbered by Conservative Party and non-affiliated senators.

No Anticipated Changes to Regulations

Federal Health Minister Jane Philpott told an April 10 news conference that marijuana use is common across Canadian society but noted that the drug can affect a person’s ability to concentrate.

“We encourage people in the workplace to make sure that workplace policies address the fact that people should be able to perform the duties as required without the impact of substances that may alter their abilities to perform,” Philpott said.

The message in occupational health and safety regulations across Canada is clear: employees should not be impaired at work.

WorkSafeBC, for example, British Columbia’s regulator, is governed by the Workers’ Compensation Act, a regulation under which employers must not knowingly permit someone to remain at work while impaired by alcohol, a drug or another substance so as to endanger themselves or others.

“We do not anticipate changes to the regulation at this time,” WorkSafeBC spokeswoman Trish Knight Chernecki told Bloomberg BNA April 12.

‘You Can’t Be Stoned at Work'

According to Straszynski, if companies have existing policies on alcohol use, creating marijuana policies should be straightforward.

“There’s nothing wrong in saying you can’t be stoned at work,” he said.

Issues could arise around the use of medical marijuana, Straszynski said. Employers would have a duty to accommodate employees with prescriptions, but ensuring the legitimacy of the prescriptions could be problematic.

“It’s not hard to get prescriptions,” Straszynski said.

Straszynski said testing for impairment also remains problematic.

“There’s no way of testing for impairment, which I think is going to be challenging for employers,” Straszynski said.

Walking a Line

Arbitrators have walked a fine line in dealing with drugs. Decisions have granted employers the right to impose rules with disciplinary consequences, but only if the need for such a rule outweighs any harmful effect on employees' privacy rights. If a workplace is inherently dangerous, employers are justified in testing an employee returning to work after treatment for substance abuse, but only if there’s reasonable cause to believe he was impaired on the job

In 2013, the Supreme Court of Canada overturned a New Brunswick Court of Appeal's decision ruling random testing was not justified in the workplace even in inherently dangerous work environments. The message from the case— Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. , 2013 SCC 34 (Case No. 34473)—was that employers, even in nonunionized settings, must demonstrate reasonableness in their testing standards.

In a more recent case— Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (Docket No. CV-17-567048) —the Ontario Superior Court of Justice held that there is a balance to be struck between privacy and the public interest. While privacy should be respected, the court held in the April 3 decision, random testing “would increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.”

“I am not persuaded that instituting random drug and alcohol testing creates the likelihood of psychological harm to the employees, results in reputational damage or permanently damages the relationship between employees and management,” Associate Chief Justice Frank N. Marrocco said in the decision.

According to a Nov. 30, 2016, task force report to Philpott and other cabinet ministers— A Framework for the Legalization and Regulation of Cannabis in Canada—“drug and alcohol use or impairment in the workplace can pose a danger to everyone in the workplace, including the person who is impaired.”

The report said the situation is particularly the case in “safety-sensitive” industries such as transportation, health care and law enforcement.

To contact the reporter on this story: Jeremy Hainsworth in Vancouver at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

For more information on Canadian HR law and regulation, see the Canada primer.

Text of Bill C-45, An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts, is available here, a government news release on the bill here, the decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34 (Case No. 34473) here, the decision in Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 here and the report of the Task Force on Cannabis Legalization and Regulation here.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try International HR Decision Support Network