With recreational marijuana set to become legal in Canada next summer, employers have limited time to prepare for the coming changes, attendees at a presentation sponsored by Torys LLP in Toronto heard on Wednesday.
The Cannabis Act, introduced in the House of Commons in April, had its second reading earlier in June as the government looks to have it to come into force on July 1, 2018. The main purposes of the legislation is to deter illicit activities related to cannabis, reduce the burden on the criminal justice system and provide access to a quality-controlled supply of the drug. Adults will be able to possess 30 grams of marijuana in a public place or the equivalent of 40 joints. Selling marijuana to anyone and distributing it to children will remain illegal.
But until the act takes effect, Canadians need to remember that smoking marijuana for fun is still illegal, Darryl Hiscocks, counsel at Torys, said at the event. Furthermore, he stressed, the new law doesn’t mean employees can be impaired at work, just as they currently can’t show up inebriated.
Employers should begin to prepare for potential impairment cases. “How are we going to deal with that phone call that says, ‘I think Jim is high?'” said Hiscocks.
The first step is to investigate the issue, said Karen Borden, assistant vice-president and lead employment counsel at Manulife Financial Corp. “Ask questions and be prepared to have open, frank and sensitive conversations: ‘Jim, I’ve noticed you’ve been slurring your speech and coming into work late. What’s going on?'”
The employer’s response really depends on how that conversation goes. If the employee shows up badly impaired because their weekend parties go on too long, discipline may be an appropriate step. If the employee has a medical marijuana prescription or is struggling with a substance abuse issue, accommodation such as short-term disability leave or an employee assistance program may be key.
Employers may reach out to an employee’s physician for more detail about their medical marijuana prescription, said Hiscocks. While they can’t ask about diagnosis or prognosis, they can ask when the employee should consume marijuana, in what format, how much and whether it will affect their ability to do their job. Employers must accommodate medical marijuana prescriptions to the point of undue hardship — not to a reasonable standard, as is the case in the United States — but they can prohibit the recreational version in the workplace.
If any employee’s or visitor’s safety is at risk, employers should consider temporarily removing the individual from the workplace. It’s also a good idea to adjust any workplace policies, said Borden. Employers should adjust policies relating to alcohol to include cannabis, and frontline workers should receive additional training about what to do and what to observe if they suspect an employee is high while at work.
Coworkers’ observations are especially key with cannabis because there isn’t a breathalyzer equivalent to test for the drug, said Tom Stevenson, an associate at Torys. Plus, tests based on hair, urine or saliva can’t indicate exactly when someone consumed the drug, so it’s hard to determine if an employee is impaired on the job.