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August 2018

Recreational Cannabis Legalization And What It Means For Employers And Their HR Policies

Recreational Cannabis Legalization And What It Means For Employers And Their HR Policies

Did you know, medical cannabis has been legal in Canada since 1999? Since then there have been numerous amendments to the laws, as well as a significant increase in Canadians who have purchased medical cannabis. According to Health Canada – approximately 167,000 Canadians were recipients of medical cannabis during the last quarter of 2016/20171. The number of users will only continue to rise with the legalization of cannabis.

The legalization of cannabis creates new challenges for Canadian employers. As a result, there is an increased need for finalizing regulation in so far as its impact in the workplace. In 2017, the Human Resources Professional Association (HRPA) conducted a survey of approximately 650 HRPA members between June 1, 2017 and June 9, 2017. This survey found that approximately 45% of respondents did not conclude that their existing workplace policies address issues that may arise with the legalization of cannabis in the workplace.2

The same survey also concluded that the top 5 concerns on impact on the workforce include:
  1. Employees operating motor vehicles;
  2. Disciplinary procedures;
  3. Decreased work performance;
  4. Employees using heavy machinery; and
  5. Attendance.
The Cannabis Act is intended to create a legal framework for the sale and possession of cannabis for recreational purposes in Canada3. The Act deals with access to quality-controlled cannabis, producing small amounts of cannabis, or designating an individual to produce it for them. However, the Federal Cannabis Act doesn’t lay out restrictions or guidelines on its use in the workplace, since employment legislation and regulation is an area of provincial jurisdiction4.  Without determining a legal structure around workplace use, Canadian employers will be faced with new challenges with respect to recreational cannabis use as it pertains to workplace safety. However, employers must remember that existing rules on medical use will continue to operate alongside the Cannabis Act.  That means accommodations must be made for medical use employees, like any other employee taking a prescribed medication.

Some things that employers will now need to consider, since the Cannabis Act is law and will come into effect on October 17, 2018 is:
  1. Setting out a clear legal definition of “impairments” and the grounds under which an employee can be tested in relation to cannabis use;
  2. Regular review of ongoing legislation and developments and updating employee policies accordingly;
  3. Not assume that using medical cannabis will impair an employee’s ability to do their job. Instead inquire as to whether the employee will be able to perform the essential duties of the job and what kinds of accommodations may be necessary; and
  4. Employers should enact a clearly outlined drug policy.
Canadian employers will need to routinely seek support and guidance from all levels of government on issues ranging from determining impairment to safety-sensitive work places.  In addition, many small businesses do not have an in-house Human Resources (HR) department.  However, DAS Commercial policyholders can contact our Legal Advice Helpline and receive general legal advice to assist with setting HR policies and to stay current with changes in legislation. Additionally, if legal action were taken against the business by an employee for an alleged breach of employment legislation due to cannabis usage, their DAS policy will assist in defending the business’s legal rights.

With cannabis legalization soon approaching and the number of registered cannabis users on the rise – Canadian employers will need to be prepared for a rapidly changing and developing legal landscape with regards to workplace safety and HR policies.
 



[1] Health Canada. (2017). Market Data. Retrieved from at: https:// www.canada.ca/en/health-canada/services/drugs- health-products/ medical- use-marijuana/licensed-producers/market-data.html
[2] Human Resources Professional Association (2017). Clearing the Haze: The Impacts of Marijuana In The Work Place. Retrieved from https://www.hrpa.ca/Documents/Public/HRPA-Clearing-The-Haze.pdf
[3] Human Resources Professional Association (2017). Clearing the Haze: The Impacts of Marijuana In The Work Place. Retrieved from https://www.hrpa.ca/Documents/Public/HRPA-Clearing-The-Haze.pdf
[4] The Government of Canada (2018). Introduction of the Cannabis Act: Questions and Answers. Retrieved from https://www.canada.ca/en/services/health/campaigns/introduction-cannabis-act-questions-answers.html
Posted: 8/2/2018 2:50:14 PM by Alexandrea Sharpe


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