Cannabis legalization and work relations: major issue or non-issue?

On October 17, 2018, the Cannabis Act (hereinafter the "federal legislation") came into effect. There are concerns that individuals could use cannabis in the workplace whenever they choose or work under the influence. But what are the real impacts of the federal law on work relations?

Applicable legislation

Since October 17, 2018, under the federal legislation and the Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (hereinafter the "provincial legislation"), it is possible for people 18 years or older to possess up to 30 grams of legal cannabis and share up to the same amount with other adults. However, it is strictly prohibited to sell or grow cannabis. Legal cannabis may be consumed anywhere, except where it is prohibited to smoke or vape tobacco. It is also prohibited on the grounds of health and social services institutions, Cegeps and universities, on bicycle paths and in bus shelters and shared transportation waiting areas. However, municipalities may enact bylaws to further restrict the locations in which cannabis may be consumed.

Obligations of the employer

At work, despite the legalization, an employer remains legally obligated to ensure the physical safety and psychological well-being of its employees, who must continue to perform their work adequately, in a way that does not endanger their health and safety or their colleagues'. As such, the employer retains the right to prohibit the consumption, possession, distribution and sale of marijuana in the workplace, as well as prohibit employees from reporting to work under the influence of the drug. To ensure that employees fully comprehend these obligations, employers are strongly encouraged to implement a drug and alcohol use policy that clearly sets out the consequences in the event of an infringement.

Drug testing

As in the case of alcohol consumption, an employer is justified in requiring employees to undergo a mandatory drug test when there are substantial grounds to believe that an individual is under the influence in the workplace. Reasonable and probable cause includes objective indications of cannabis use and instances in which an employee is directly involved in a serious accident or returns to work after alcohol or substance abuse treatment. Only in such cases is mandatory drug testing at work considered the reasonable exercise of an employer's rights.

Current drug testing methods rely on breath, urine or blood samples. Saliva samples are the simplest to collect and make it possible to determine whether an employee has consumed cannabis in the past three to six hours. However, it does not determine the concentration of cannabis in the blood or the exact time of use. Urine testing, which must be conducted by a specialist, is less useful since it only confirms whether an employee has used cannabis in the past seven days (occasionally) or thirty days (regularly). The test is therefore only suitable in cases in which an employer requires complete abstinence (e.g. in an employee's return-to-work agreement following addiction treatment). Finally, a blood test is by far the most accurate means to know the exact concentration of cannabis in a person's blood and whether he or she was actually under the influence at work. However, blood testing is the most intrusive method, and an employer must have strong reasonable grounds to order a blood test, which the employee must undergo in a specialized clinic.

Random drug testing is generally not permitted. To require random testing, the employer must meet two key conditions: employees required to take the test must occupy a high-risk position in terms of workplace or responsibilities and the employer must demonstrate that there is a widespread consumption issue in the workplace. It is important to note that very few employers have been able to meet these conditions and require random drug tests.

Finally, pre-employment testing is strongly discouraged. First, an employer may not discriminate against new hires on the grounds set out in section 10 of the Charter of Human Rights and Freedoms. Because cannabis dependence is considered a handicap under Charter, simply questioning one's cannabis use is discriminatory, as is testing. Even when an employer becomes aware that an applicant has consumed cannabis in the week prior to the job interview, the information cannot be considered in the application assessment process. In addition, even when an employer does not draw on the information to reject an application, the unsuccessful applicant may still file a complaint with the Human Rights Commission and claim damages.

Disciplinary measures

When an employer obtains proof that an employee has violated a drug policy, the employer must impose disciplinary measures that may result in action including written notice and up to dismissal. Disciplinary measures vary based on the specificities of each case (e.g. employee's position, level of safety risk, amount consumed, etc.). In addition, the policy must be applied rigorously, otherwise some employees may suppose there is a certain degree of tolerance. The employer must therefore remain coherent in how it handles incidents and imposes the resulting disciplinary measures.

Cannabis addiction and the notion of reasonable accommodation

At a disciplinary meeting with an offending employee, or at any other time before applying disciplinary measures, the employee may affirm that he or she is addicted to cannabis. When confirmed by a physician, the addiction entails that the employer must assess the accommodation measures available to help the employee overcome the addition. These accommodation measures may include authorizing unpaid absences to attend support meetings or adjusting the employee's tasks to reduce stress during addiction treatment. From a financial perspective, the employer may choose to cover the costs related to the employee's addiction treatment. In such cases, as an alternative to disciplinary measures, the employer may agree not to apply disciplinary measures on the condition that the employee remains drug free and agrees to random drug testing (urine tests).

Conclusion

Legalizing cannabis has led to significant impacts in all social spheres. In our opinion, there are only minor impacts on labour relations. Indeed, the topics discussed here were topical even before the laws came into effect.

Still, the legalization process should lead employers to reflect on the subject and update or implement a clear policy on cannabis use among its employees.