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Seeing Through the Smoke: Employees’ Rights and the Legalization of Cannabis

By , August 9, 2018 2:09 pm

On October 17, 2018, Bill C-45, (the “Cannabis Act”) is scheduled to take effect. In essence, this bill will make smoking or ingesting cannabis legal in Canada, and will create a legal framework for its sale and possession.

While provinces will each have the power to control how cannabis will be used and sold, individual employers will likely respond to the new bill and to the expected increase in cannabis consumption themselves. This may create problems for you as an employee.  Your employer may have newly relevant policies in place to restrict or regulate the use of alcohol or drugs in the workplace, and they may introduce new rules precisely because of the legalization of cannabis.

It is important that you make yourself aware of both the federal and provincial laws regulating the legalization of cannabis, as well as of any pre-existing or modified policies and procedures regarding drug use in your workplace.

Ontario’s Regulations

The Ontario government will be responsible for regulating the distribution of cannabis. Ontario has passed laws about where, how, and who can consume recreational cannabis. The minimum age to possess or use cannabis in Ontario will be 19. In Ontario, Bill 174 will prohibit the use of cannabis in many locations including:

  • any public places,
  • motorized vehicles, and
  • the workplace.

How Bill 174 Affects Employees

Consuming recreational cannabis in the workplace will remain illegal. This means that generally an employee cannot use cannabis at work, during lunch breaks, or at work events. However, it is not prohibited to bring cannabis into the workplace, absent an employer policy. It will remain the responsibility of employers to enforce these prohibitions.

Employers may react to Bill 174 by attempting to detect and deter cannabis impairment in the workplace. They may do so by implementing a thorough drug and alcohol policy. While these policies should clearly outline your obligations as an employee in the workplace, they may not have your best interests in mind, and may be detrimental to your health and privacy. For this reason, it is always a good idea to have an employment and labour law lawyer review any changes in your employment contract and employee handbook.

Employers may also respond to the new maze of obligations by introducing drug and alcohol testing in the workplace. This, however, could jeopardize your rights to privacy and frequently leads to litigation. Random drug testing has proven to be extremely controversial, especially when there is no evidence of drug problems or abuse in the workplace.

Overly strict drug policies may inhibit your right to accommodation. If you suffer from a disability that requires the use of cannabis, or if you are addicted to cannabis, you are protected under the law. The duty to maintain a safe work environment must be balanced with an employer’s obligation under human rights legislation to accommodate an employee with a disability.

It is important for employees to understand that:

  • employees who use medical marijuana have a right to be accommodated, to the point of undue hardship,
  • an addiction to marijuana can fall under the definition of disability, and
  • an employer’s drug and alcohol policy should distinguish between recreational and medical marijuana.

The intersecting issues surrounding cannabis at the workplace including health and safety considerations, the duty to accommodate, and ambiguously motivated drug testing can result in the need for professional advice. MacLeod Law Firm specializes in helping and defending employees against unjust or discriminatory policies, and can help you navigate the intricacies of the legalization of cannabis.

If you have questions about your rights at works regarding cannabis and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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