With legalized recreational pot coming, employment lawyers are anticipating a steady stream of legal issues.
By Elizabeth Raymer
As Canada prepares to become the first G7 country to legalize the consumption and sale of recreational marijuana, lawyers are preparing for the impact of the legalization on labour and employment law from a workplace safety perspective.
In April, when Prime Minister Justin Trudeau’s Liberal government announced its intention to make good on its campaign promise to legalize cannabis sales by July 2018, the Quebec bar was already getting ready to thrash out the various issues raised by legalizing cannabis in a special working group.
Charles Wagner, a member of Langlois lawyers LLP’s employment and labour law group in Montreal and a certified human resources professional, is one of that group, which aims to provide the Quebec bar with a position on the impending new legislation.
“There is no specific provision in the bill that touches labour and employment,” says Wagner. However, he adds, “the current bill will most likely have an indirect impact on employers and employees.”
First and foremost, employers must take the necessary measures to protect the health, physical safety and wellbeing of its workers, he says, and employees have the same obligations. The legalization of recreational cannabis will, therefore, have an impact on the workplace, Wagner predicts, because, like alcohol, cannabis affects physical behaviour and so may be detrimental to the health and safety of the employee.
Concern over the proposed new legislation has also been brewing in the oil patch, where workers are often operating heavy machinery.
“There absolutely is” concern among employers about recreational cannabis legalization, says Loretta Bouwmeester, a partner in the employment, labour and occupational health and safety practice of Mathews Dinsdale & Clark LLP in Calgary.
“We’ve had quite a few employers reach out,” she says. “They’re looking at their fitness-for-work policies and recognizing that there will be employee questions that they’ll need to answer.
In the past, marijuana was dealt with [in workplace policy] as an illegal drug. But medical marijuana is available now, and recreational use will be next year. Employers see the impact and risk that it represents and want to get ahead of it.”
Alcohol v. cannabis
The science isn’t in on the effects of marijuana yet, either, making it difficult to predict how it will affect workers’ behaviour or what level of intoxication from cannabis can be accepted.
Scientific research on the effects of cannabis has not been widely conducted, no legal parameters have been established for impairment and the effects of the drug on the body are different than the already-legal alcohol. It’s a big unknown.
The “evaluation of consumption is different,” says Wagner. While the physical effects of alcohol are obvious, that isn’t true of cannabis. Further, he says, cannabis can be ingested in food such as cakes and candies, making its consumption less obvious to employers.
“With alcohol, there’s a clear threshold: You’re impaired at law [at a certain blood alcohol level]. But what is going to be the cutoff level for cannabis blood concentration?” asks Bouwmeester. That threshold hasn’t been established yet. In a lengthy report by the federally appointed task force on legalizing cannabis, there were less than two pages on workplace implications, she says. “From an employer perspective, the workplace issues have not been adequately addressed.”
Nor is there currently the same control of the level of “strength” of marijuana compared to alcohol, which is labelled according to alcohol content. The level of tetrahydrocannabinol, or THC, the principle psychoactive constituent in cannabis, is not consistent in cannabis. However, under the new legislation, strength of product will be regulated, particularly as the marijuana industry is burgeoning.
“The government regime will effectively take the distribution model, like for liquor, but you will have certified producers providing the product,” says Michael Howcroft of Blake Cassels & Graydon LLP in Vancouver, B.C. The system for controlling potency “will be premised on consistent quality and a known dosage.”
Several lawyers interviewed also expressed concern that, with the legalization of recreational cannabis and the loss of stigma attached to consuming the drug, consumption will increase.
“There’s potential for an increase in addiction,” says George Waggott, who practises in McMillan LLP’s employment and labour relations group in Toronto. “The potential is unknown, and uncertainty is never good. . . . But it’s fair to say the likelihood of the number of people consuming marijuana — it’s not going to decrease.”
Marijuana as prescribed
Marijuana use for medicinal purposes is already legal, and one potential risk is for workers “self-dosing,” says Howcroft. Someone may be buying cannabis “through the recreational retail chain, but then when it comes to the workplace, claiming it is medically necessary and relying on the duty of the employer to accommodate.”
At present, if an employee is using medical marijuana, they require documentation from a doctor, Howcroft says. But, if next year an employee tells his employer he needs cannabis to treat his glaucoma but he has purchased the cannabis from a local pot shop without a prescription, “the challenge for employers will be to hold employees accountable, that they’re not misusing marijuana for [purported] medicinal purposes.”
The challenge “is that we have very little research and understanding of symptoms associated with marijuana use, unlike with a drug that’s come to market through a pharmaceutical company,” says Bouwmeester. Employers have a commitment to understand marijuana as a drug and if it will benefit workers medicinally.
Users of medicinal marijuana are afforded protection under human rights codes, as the need for it is considered a disability of sorts, says Muneeza Sheikh of Levitt LLP, an employment and labour boutique firm in Toronto. While under the human rights codes there’s a duty to accommodate, that’s to the point of undue hardship only, and an employee must show their need.
At the same time, the Occupational Health and Safety Act says that all employees have the right to work in a harassment-free, safe and healthy environment, which also places an obligation on employees, Sheikh says. Although the employer does have an obligation to accommodate employees with medical problems, the threshold may be lower when workplace health and safety issues present themselves.
Safety (and policy) first
“The bottom line is no law is ever going to allow an employee to work while impaired,” says Natalie MacDonald of employment law boutique Rudner MacDonald LLP in Toronto. “It poses a safety risk. The employer has an absolute ability to say this is a reason we’re not allowing you to ingest marijuana in the workplace.”
This includes an employer right to modify a worker’s hours or even give a leave of absence. A consequence of the breach of policy, where an employee is not fit for duty, would be reprimand, discipline, termination or termination for just cause.
MacDonald says she advocates a “POT” approach for employers and a “WEED” approach for employees. Employers first need a Policy, drug- and alcohol-related, she says. “O is for obligation to accommodate and engage the employee. And T is to train employees on the policy.”
For employees, she says, “W is, without a prescription, there is no accommodation; E is engage with your employer if accommodation is required; E is ensure that your employer is aware of your need for accommodation; and D is disclose all medically required prescription drugs.” This applies to public- and private-sector workplaces alike.
Drug testing is not expected to be used more in workplaces with the advent of the new cannabis legislation “unless you’re in a safety-sensitive position,” says MacDonald. “If you have marijuana in your system but you’re not high when doing your job, you won’t be jeopardizing yourself or others. An employer will have to show that testing is in the interests of safety, for the employee, the workplace and/or the public.
“Therefore, if the employee does have the need, by way of a medical note, to have marijuana for medical purposes, the employer [still] has the right to forbid employees from doing certain kinds of work,” she says, such as operating a forklift.
“I don’t think that the legalization of cannabis will on its face change the current state of drug and alcohol testing in the law,” Howcroft agrees. “Right now, the law tries to balance workplace safety with employee privacy. I think that won’t change.” But a spate of cases to do with drug and alcohol testing have arisen in recent years, including the Supreme Court of Canada’s 2013 decision in Irving Pulp & Paper Ltd., in which the court endorsed a line of arbitral case law that permits testing of employees in safety-sensitive positions in dangerous work environments for cause and, in strictly limited circumstances, for alcohol impairment on a random basis.
In a recent Toronto Transit Commission case, the union went to court to try to get an injunction against random testing in the workplace, but in April, the Ontario Superior Court of Justice rejected that injunction and allowed the TTC to implement its drug and alcohol testing, pending the outcome of a labour grievance.
“The union had a privacy objection,” Howcroft says. However, “it came down to balancing health and safety issues with privacy.”