Cannabis has been in the news a lot lately with the recent legalization and the events leading up to it. Now that it is legal, have we seen many changes, though? Here in BC, we have not seen as many changes as we thought would occur. One of the reasons behind this is that there are currently only two stores legally allowed to sell Cannabis in BC. One government store in Kamloops and one private store in Kimberley. There are also online retailers, but as predicted, supply is an issue and there is a supply shortage.

Legalization smothered the cannabis supply

So, there is currently a supply shortage and limited access to legal recreational cannabis. Unfortunately, this means there is still 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.
Many employers have a lot of questions about how to handle legal recreational cannabis in the workplace. Questions include:
  • 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. The landscape of legal and illegal drugs is constantly changing, but we already have tools to deal with these concerns. Especially when it comes to the workplace.

Policies will help you police

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 a controlled substance that has impairing effects, like 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 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 has impairing effects. These effects are similar to an opioid pain medication’s impairing effects.

If you have a good policy in place, then there is not much change with the legalization of recreational cannabis. Fortunately, it is not too late for employers to review their workplace policies. This would help to ensure they can limit some of the potential impacts 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 concerns about recreational cannabis at work. It will also address 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 workplace; 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 workplace 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. All employees should also be aware of the policy and directed to read it.

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. 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. Furthermore, the search needs to be carried out on the employer’s property and conducted in a way that does not single any employees out.

These policies need to be clearly articulated to your employees and employees need 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 cannabis legalization

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 require years of study to properly understand. What this means is, 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 businesses 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.

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