Cannabis has been in the news a lot lately with the recent legalization and the run up to legalization, but now that it is legal, have we seen many changes? Here in BC we have not seen as many changes as we may have initially thought would occur. One of the reasons for that is that there are currently only two stores that are legally allowed to sell Cannabis in BC. One government store in Kamloops and one private store in Kimberley. There are also online retailers, however as predicted supply is an issue and there is a supply shortage.
So, there is currently a supply shortage and limited access to legal recreational cannabis. This means there is still unfortunately an underground market for cannabis in BC, but that is a topic for another article. It also means that with limited supply and access we have not seen the full effect of legal recreational cannabis.
Prior to legalization and with legalization, many employers have had a lot of questions about how to handle legal recreational cannabis in the workplace, such as:
- Will my employees show up to work high?
- What do I do if an employee is high at work?
- How do I tell if an employee is high at work?
- How do I prevent my employees from showing up high to work?
These are legitimate questions and concerns. Fortunately, while the landscape of legal and illegal drugs has changed and continues to change, we already have some tools to deal with these concerns, especially when it comes to the workplace.
In particular a good drug and alcohol policy will be able to deal with the use and impairment of legal recreational cannabis in the workplace. Recreational cannabis is l a controlled substance that has impairing effects not unlike alcohol. You would not expect or allow your employees to show up to work drunk, nor would an employee be allowed to carry a mickey of vodka or a flask in their pocket and drink while working. Similarly, it is not acceptable for an employee to show up to work high from smoking cannabis or to be able to carry a joint in their pocket.
Good drug and alcohol policies will be able to deal with recreational cannabis in the same way they deal with alcohol. A good drug and alcohol policy will also be able to deal with medical cannabis. While medical cannabis may be prescribed it l has impairing effects, similar to an opioid pain medication’s impairing effects.
If you have a good drug and alcohol policy in place, then there is not much change with the legalization of recreational cannabis and the increased supply and access that we can expect to see. Fortunately, it is not too late for employers to review their workplace policies to ensure they can limit some of the potential impact of increased recreational cannabis use.
Some of the essential policies a workplace should have in place are a drug and alcohol policy, and an investigation and search policy. We will review these policies and some of the things these policies can and cannot do.
Drug and Alcohol Policy
We recommend to employers that they have a drug and alcohol policy in place. A drug and alcohol policy will address employer’s concerns about recreational cannabis at work and their employees showing up for work impaired by cannabis. A drug and alcohol policy should include:
- An outline of the employer’s policy on the use, impairment and abuse of drugs and alcohol;
- An outline of the employer’s policy on the possession of drugs and alcohol at the workplace;
- Details of behaviour that is prohibited by the employer;
- Definitions of controlled substances covered by the policy;
- The employer’s policy regarding substance dependency;
- The employer’s drug and alcohol testing policy;
- A set of expectations for employees at the work place; and
- The consequences of violating the policy.
Many employers have questions about drug and alcohol testing in the workplace. With respect to drug and alcohol testing the Supreme Court of Canada has held that the unilateral implementation of random drug and alcohol testing is not allowed without proof of “a demonstrated work place problem” with drug and alcohol use and abuse. Therefore, an employer cannot implement a random drug and alcohol testing policy, without a sufficient reason. However, a drug and alcohol policy can outline when drug and alcohol testing will take place. An employer can test their employees for drugs or alcohol with reasonable cause or as part of post-incident testing. It is important that these policies are clearly outlined in a drug and alcohol policy and that all employees are not only aware of the policy but directed to read the policy.
Search and Investigation Policy
Another policy that is important to have in place is a search and investigation policy. Such a policy is not only important for investigations and searches regarding theft but also for upholding a drug and alcohol policy that prohibits impairment, possession, and use of drugs and alcohol in the workplace. Employers should have a search policy in place before carrying out any searches of employee property, and the policy should be clearly communicated to employees before it is implemented.
A search and investigation policy should outline what can be searched, when searches will be conducted, how searches will be conducted and where searches will be conducted. When implementing a search, employers should ensure they have a reasonable cause for the search, that the method of search is minimally invasive, that the search is carried out on the employer’s property, and that the search is conducted in a way that does not single any employees out.
These policies need to be clearly articulated to your employees and employees need to have easy access to the policies, so they can read and familiarize themselves with the policies. It is important to regularly review your policies to ensure they cover any areas you are concerned about. It is also important to remind your employees of these policies and invite them to review the policies regularly. If you are concerned about the effectiveness of your policies or if you need to implement new policies, it is important to consult an- employment lawyer to ensure the policies are appropriate and effective, as well as implemented properly to be valid.
Changes Still to Come with the Legalization of Recreational Cannabis
The legalization of recreational cannabis has affected many areas of law including criminal law, immigration and employment law. At this point we don’t know precisely how legalization will change the law, life and business in Canada. There are many unknowns about the consumption and impairment of cannabis that will requires some years of study to properly understand. What this means is that, while the first initial big change that recreational cannabis is legal has happened there is still the possibility of many more changes to come as the law is tested in the Courts and more research on cannabis is conducted. In time, increased supply and access to recreational cannabis will produce more changes . The reaction of Canadians and Canadian business to this new law will likely change over time.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.