Over a year ago, on October 17, 2018, the 95-year old ban on recreational marijuana use was lifted. How have labour and employment laws reacted, and how has the legalization of cannabis changed what we see in the workplace? The statistics and case law are showing that, for the most part, it is 'business as usual'. Here are 6 developments we have seen since the legalization of recreational cannabis.
1. Number of cannabis users has remained steady
The most recent numbers from Statistics Canada indicate that around 17% of Canadians have used cannabis within 3 months of being surveyed. Although marijuana use has increased in certain regions and age groups, that overall 17% mark is roughly the same as it was pre-legalization. In other words, there is no evidence that legalization has led to more people taking up the habit. The modest increase in users that was reported following legalization has disappeared.
2. A lot of employees are lighting up at work.
Statistics Canada estimates that half a million workers consumed cannabis at work or before work. There is no word on whether this figure has changed following legalization, but it reinforces the need for employers to monitor employee impairment, adopt sound drug and alcohol policies, and follow them closely.
3. Few reported cases of discipline for cannabis impairment
Despite the surprising number of employees who have reportedly worked while under the influence of marijuana, there have been very few reported cases of employees disciplined or terminated for doing so, since legalization. This could be caused by a number of factors, such as employer leniency or even problems with detection.
Whatever the case, it is important to remember that the legalization of cannabis does not permit employees to show up to work impaired and this should be made absolutely clear in your company's drug and alcohol policy. Enforcing a strict zero-tolerance policy remains particularly important for safety-sensitive positions, such as forklift operators or kindergarten teachers.
4. No reported increase in 'cannabis addiction'
Before legalization, 'cannabis addiction' had not been acknowledged in any Canadian jurisprudence. So far, that appears to remain unchanged. The Toronto Centre for Addiction and Mental Health (CAMH) has reported that it will not have a clear picture of whether people require treatment for cannabis addiction until early 2021.
This is an important development for employers to keep an eye on, as drug addiction constitutes a 'disability' which must be accommodated for by employers, up to the point of undue hardship.
5. Random drug testing remains illegal in most cases
In 2018, some had speculated that the legalization of cannabis would lead to increased use, and an associated legitimization of drug test by employers, particularly in safety-sensitive industries like aviation. However, that has not materialized.
For instance, Transport Canada has recently adopted a standard, which prohibits flight crews and flight controllers from consuming cannabis within 28 days of duty. In OPEIU v Cougar Helicopters Inc., arbitrator Susan M. Ashley held that this new directive does not give air carriers license to perform drug tests on employees without reasonable suspicion. Arbitrator Ashley pointed to a lack of evidence that random testing was required to ensure safety and prevent substance abuse. She pointed out that the proverbial 'floodgates' did not appear to have been opened by the legalization of cannabis.
By the same token, random testing that was allowed before the legalization of marijuana still appears to be permissible now. One example is the transportation industry, where companies are generally required to enforce random drug testing for employees who cross the U.S. border (i.e. cross-border trucking).
6. Medical marijuana is still an issue
Medical marijuana remains legally recognized, and employers are still required to reasonably accommodate employees with a prescription. However, courts and tribunals continue to recognize that cannabis impairs ability, particularly in safety sensitive positions. So, for instance, a trucking company is not required to accommodate a truck driver's use of medical marijuana, as the Canadian Human Rights Tribunal recently confirmed in Willcott v. Freeway Transportation Inc.
WHAT HAVE WE LEARNED?
An employer's approach to cannabis in the workplace should be similar to its approach to alcohol. Alcohol was legalized in 1927, with the repeal of the Ontario Temperance Act, yet employees cannot come to work intoxicated. Similarly, employees cannot smoke cigarettes in the workplace, even if they are addicted to tobacco. Employers should take a common-sense approach to cannabis and, implement a well-designed drug and alcohol policy.
Contact Hyde HR Law today for assistance in dealing with cannabis in the workplace.