Both medical and recreational cannabis has been legal in Canada for some time now. As new cannabis stores seem to be popping up on a near-daily basis, some employers are asking what this might mean for the safety of their workplace.

Legal implications

Although cannabis use is legal, it does not mean that other laws go out the window. Under the criminal code, it would still be a serious offence for an employee to operate a vehicle while under the influence, and the Occupational Health and Safety Act still contains many regulations prohibiting impairment in the workplace, while the Smoke Free Ontario Act dictates where smokers (including cannabis smokers) may and may not smoke.

On the other side of the issue, however, is the Human Rights Code which stipulates that employers have a duty to accommodate those who use medical cannabis and those with substance dependency, providing that it does not cause the employer undue hardship.

Why is cannabis a safety concern in the workplace?

Employees who use cannabis may experience:

• Slower reaction times.
• Decreased ability to recall information.
• Sleepiness.
• Decreased ability to pay attention.
• Possible psychological effects including depression, anxiety, paranoia, or psychosis.

And all of these effects can be cause for safety concerns, particularly if the employee is working with vehicles, machinery, heights, etc.

Cannabis impairment in the workplace

As with alcohol, it is reasonable that employers can expect their workers to not be impaired by cannabis in the workplace.  Unlike with alcohol, however, there is no official blood limit as to what constitutes impairment. This leaves employers in a difficult situation in determining impairment or whether they can conduct workplace drug testing for cannabis.

What can employers do?

Although cannabis use presents a challenging situation for employers, you still have a legal and moral duty to protect the safety of your employees. With respect to cannabis use, employers should:

• Update their policies – many employers already have policies in place concerning alcohol and drug use. These policies should be updated to address recreational cannabis and updates should be clearly communicated to your staff.
• Conduct safety training – In addition to communicating your updated policies, employees need to be trained in all safety-related aspects of the job – and this should include training about cannabis impairment.
• Recognize the signs of impairment – Managers and supervisors should get training on learning the signs of impairment and what steps to take if impairment is suspected. It is important however to be careful not to discriminate against those using medical cannabis.
• Know the legality of drug testing – In most cases, drug testing in the workplace is not permissible. The exceptions are in safety-sensitive roles that have limited supervision and where the employer can prove that it is a bona fide occupation requirement (BFOR) to not be impaired. As the rules surrounding this are very strict, it is highly recommended that employers speak to an employment lawyer before implementing a new drug testing program.
• Accommodate employees who use medical cannabis or who have substance addiction – Under the human rights code, you must accommodate these employees up to undue hardship. Accommodation may include modifying their duties or allowing them time off to get treatment.

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