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Posts tagged: Drug and Alcohol Policy

Vicarious Liability – The Fallout from Festive Staff Parties

By , November 2, 2018 1:31 pm

With the legalization of cannabis behind us and holiday parties on the horizon, one question on employers’ minds is how to deal with cannabis use at staff parties.

Vicarious Liability

Employees need to be mindful of the doctrine of vicarious liability whereby employers are ultimately responsible for the actions and omissions of their employees in the course of employment. Liability is imposed to the employer not on the basis of the fault of the employer, but on the ground that as the person responsible for the activity or enterprise in question, the employer should be held responsible for loss to third parties that result from the activity or enterprise.

To take an example from the most similar context, when it comes to alcohol use at company-sponsored events, the courts have clarified that due to the nature of the employer-employee relationship, the standard of care imposed on an employer is higher than that imposed on a tavern owner.

In addition to their duty to maintain a safe workplace under the Occupational Health and Safety Act, employers who provide alcohol at a company-sponsored event are obligated to monitor the amount of alcohol consumed by employees; and take positive steps to prevent an employee from driving home after drinking. Such steps include: demanding the employee for their car keys, paying for a cab to send the employee home safely, calling the police, calling a contact to come and take the employee home, or physically stopping the employee from hurting themselves or others.

Where employees drive while intoxicated and subsequently get into a serious car accident after leaving a workplace event where alcohol was served, employers may be found vicariously liable for the actions of their employees.

How Does This Apply to Cannabis?

The legalization of cannabis further complicates matters. As stigma around cannabis use decreases, it is not out of the question to picture employees consuming cannabis at a Company-sponsored event, such as a staff holiday party.

One way to deal with this potential problem is through a Company policy. The use of alcohol, cannabis and drugs at Company-sponsored events can be addressed in a drug and alcohol policy. If the nature of your industry involves requiring employees to attend many events in which they represent the Company, whether the events are sponsored by the Company or not, an employer may want to consider having a separate policy on events.

One question I’ve been asked often from beleaguered employers is: even if we address cannabis use in a policy, how can we justify treating cannabis any differently than alcohol now that cannabis is legal? Although this area of law is still developing and we will have to wait and see how the doctrine of vicarious liability evolves with the legalization of cannabis, one main difference between the two substances is their availability to the general public and the systems in place behind distribution and service. An employer serving alcohol at a party would be prudent to do so through a licensed distributor (such as a restaurant or bar), or through people that are licensed and certified to serve alcohol. The reality is that these systems are not (legally) in place for cannabis consumption, and there is, therefore, no way to monitor consumption and ensure your employees’ safety. In other words, there is no such thing as a “cannabis server” or a  “Smart-Serve” certificate for cannabis distribution. Until such time, an employer may be able to justify making a distinction between alcohol and cannabis at a holiday party.

However, although an employer may have eyes and ears at the Company-sponsored function itself, an employee could always find a way to consume cannabis and escape the employer’s detection. For this reason, it is more important for an employer to focus on identifying impairment and circumstances where an employee may need an employer’s intervention to prevent them from driving while impaired, than to focus on identifying (and prohibiting) the source of the impairment.

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.

Cannabis Legalization: Behind the Smoke and Mirrors

By , October 17, 2018 9:44 am

Whether you’ve been looking forward to this day – October 17, 2018 – or whether you’ve been dreading it, the legalization of recreational cannabis in Canada is officially here.

Although employers have had over a year and a half to prepare for legalization, a recent Ipsos poll found that managers and employees are not on the same page when it comes to their respective expectations concerning the use of recreational cannabis in the workplace.

Only 18% of non-management staff say that management has communicated clear expectations on the use of recreational cannabis in the workplace. This number is at odds with manager expectations: 55% of managers believe employees clearly understand management’s expectations.

Leaving employees to self-educate on the changes that follow legalization is not a good idea. Only 16% of those non-management employees polled said they are “very familiar” with the changes and with where they are allowed to consume cannabis. Most others are only somewhat familiar (52%) or not very familiar (24%). Finally, 17% of working Canadians believe it is possible to use recreational cannabis before going to work or during work hours (including lunch and coffee breaks), while another 6% definitely believe it is permissible to do so after October 17, 2018.

Given the disconnect between managers and employees’ expectations, it is important to communicate these expectations through workplace policies. If you already have a policy, here are a few other questions to consider.

  • Does your current policy simply refer to illegal drugs? With the legalization of cannabis, such language will not cover recreational cannabis. Also, impairment can come from various sources, including prescribed, legal medication.
  • Does your current policy include a distinction between recreational and medical cannabis?
  • Does your current policy define the workplace? What if an employee travels for work, or attends many after-hour functions? Does your current policy state under which circumstances cannabis consumption is not permitted as an employee?

There is no one size fits all drug policy. It should be tailored to the needs of your business. We suggest that all employers develop a policy, and then communicate it to employees and provide any necessary training. We are hosting seminars in Toronto and Barrie next week and one of the topics we will be covering is some of the components that should be included in a drug policy. Click here for more information on this seminar, or call Judy Lam at 647-204-8107

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

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.

Don’t Let Cannabis Laws Leave You Dazed and Confused

By , July 17, 2018 11:03 am

In October, smoking or ingesting cannabis will be legal in Canada. Does your business have policies and procedures in place to handle this transition?

The federal government has passed legislation that will make cannabis legal, giving the provinces power to control how it will be used and sold.

This historic change is likely to lead to a significant increase in cannabis consumption. Prudent employers should be ready to handle the presence of cannabis in the workplace.

Federally, The Cannabis Act

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Cannabis Act”) is scheduled to take effect on October 17, 2018. It creates a legal framework for the sale and possession of cannabis in Canada.

The underlying purpose of legalizing cannabis is to deter criminal activity, prevent young persons from accessing cannabis, and to protect public health and safety.

The Cannabis Act will allow adults to possess up to 30 grams of cannabis.

Provincially, Ontario’s Regulations

The Ontario government will be responsible for regulating the distribution of cannabis. Most provinces plan to use their liquor agency as the main distributor of recreational 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.

After province-wide consultation, Ontario passed Bill 174, Cannabis, Smoke-Free Ontario, and Road Safety Statute Law Amendment Act, 2017 (Bill 174). This omnibus legislation enacts

  • the Cannabis Act, 2017 (Schedule 1),
  • the Ontario Cannabis Retail Corporation Act, 2017 (Schedule 2), and
  • the Smoke-Free Ontario Act, 2017 (Schedule 3).

Bill 174  repeals the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015, and makes amendments to the Highway Traffic Act including driving with drugs or alcohol present in the body (Schedule 4).

Bill 174 prohibits the use of tobacco or cannabis in many locations including

  • Any public places
  • Motorized vehicles
  • The workplace

How Bill 174 Affects Employers

Consuming recreational cannabis in the workplace remains illegal. The term “workplace” is given the same broad definition as in the Occupational Health and Safety Act (“OHSA”). This means that 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.

Further, Bill 174 has specific provisions affecting particular industries. For example, there are provisions protecting home healthcare workers from second-hand smoke and prohibiting the use of cannabis while operating a motor vehicle.

The Maze of Employer’s Obligations

With marijuana legalization around the corner, there are a minefield of issues facing employers. First and foremost, the law does not authorize employees to be impaired at work and employees do not have a right to smoke cannabis at the workplace. This is particularly important in safety sensitive workplaces, as employers must continue to meet their obligations under the OHSA.

A tricky issue facing employers is the detection of cannabis impairment in the workplace. A thorough drug and alcohol policy can assist employers in this regard. Introducing drug and alcohol testing however is very controversial and often leads to litigation.

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. As most employers already know, medical use of marijuana has been legal in Canada since 1999. It is currently regulated under the Access to Cannabis for Medical Purposes Regulations.

It is important for employers to note:

  • 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
  • an employer’s drug and alcohol policy should distinguish between recreational and medical marijuana. 

Employers will have the power to develop policies on the possession and use of recreational cannabis in the workplace. Policies can outline acceptable employee behavior while maintaining employee privacy.

Be Proactive! Steps Employers Can Take

To manage expectations in relation to cannabis use, an employer can create a drug and alcohol policy before Bill C-45 comes into force in October. If a drug and alcohol policy already exists, it can be updated to reflect the legislative changes regarding cannabis. This policy making process can take time. Further, employees need training to understand what is expected of them at work.

The intersection of issues surrounding cannabis at the workplace including health and safety considerations, the duty to accommodate, and the complex area of drug testing can result in the need for professional advice on how to create a reasonable and enforceable drug and alcohol policy. MacLeod Law Firm offers a fixed fee to prepare such a policy, taking into account the nature of the business to ensure the policy suits your needs.

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

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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