On June 21, 2018, the Senate gave Royal Assent to Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. However, the Cannabis Act is not yet in force. Although the target date was initially July 2018, the effective date has been pushed to October 17, 2018. Prime Minister Justin Trudeau made a recent announcement during Question Period in Ottawa that the main reason why this has occurred is to enable the provinces and territories to have more time to ensure they are fully ready legislatively speaking to enable a smooth and successful implementation of the new rules, along with producers (see here).
In fact, Prime Minister Justin Trudeau expressed an intention for the government to continue working in full partnership with the provinces and territories in order to ensure that this goal is met.
It is hardly surprising that many employers are concerned with this development – many employers have expressed apprehensions regarding workplace safety, impairment or intoxication, and an increased use of cannabis inside and outside the workplace that may negatively affect employees’ well-being. Moreover, many organizations feel uneasy about the lack of direction, the speed at which this legislation has passed, and the lack of preparation time to create meaningful workplace policies and procedures (here and here).
In these articles, I explained the nature of Bill C-45 and the legislative responses by the provinces and territories. Most recently, I mentioned that it is recommended for employers to focus on impairment at work instead of singling out cannabis – just as employers are entitled to prohibit the use of legal substances like alcohol in the workplace, they would also be entitled to restrict the use and possession of cannabis in the workplace in order to ensure a safe and productive workplace that is free of impairment. That is, employers may prohibit the use of recreational marijuana at work or during working hours and may also prohibit employees from attending work while impaired. Workplace rules regarding non-medical use of marijuana may be enforced through the application of the employer’s substance abuse and progressive discipline policies. This is especially relevant in safety-sensitive jobs.
However, it is critical that employers are aware that it would still be necessary to respect any accommodation requirements under human rights legislation. This situation can arise in two main situations.
Firstly, employers must continue to meet human rights responsibilities regarding employees who suffer from particular medical conditions and engage in medical use of marijuana. Employers are recommended to continue their use of policies and procedures for medical use of marijuana in the workplace in order to comply with human rights requirements.
Secondly, employers are recommended to remain informed and to appreciate that there may be certain situations where employees suffer from marijuana addictions, consequently triggering human rights obligations. Employers are recommended to ensure that their policies and procedures sufficiently address addictions so they can remain in compliance with applicable human rights provisions.
With the above qualification in mind, employers would still be entitled to discipline employees where the recreational non-medical use of marijuana has an adverse impact on their job performance or endangers their co-workers or customers. Employers are recommended to create policies and procedures that address marijuana use in the workplace and also to ensure that they set out their expectations regarding workers who drive company vehicles so that they remain in compliance with relevant impaired driving provisions. Employers are recommended to train employees regarding their policies and consistently enforce them. Where employers are unsure of how to approach this issue, they are recommended to seek legal advice.
Employers are also recommended to visit the Canadian Center for Occupational Health and Safety site to learn more in a course that tackles concerns related to workplace impairment from marijuana use.
Along the same lines, it is important to note that Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, also received Royal Assent in the Senate on June 21, 2018.
Why is this important?
The goal of this Bill is to amend the Criminal Code to deal with offences and procedures relating to drug-impaired driving.
More specifically, the changes involve: enacting new criminal offences for driving with a blood drug concentration that is equal to or higher than the permitted concentration; authorizing the Governor in Council to establish blood drug concentrations; and authorizing peace officers who suspect a driver has a drug in their body to demand that the driver provide a sample of a bodily substance for analysis by drug screening equipment that is approved by the Attorney General of Canada.
To that end, employers should be aware of this legislation, especially if their employees are driving company vehicles. Employers are recommended to respond by having appropriate policies and procedures in place, and training employees on these policies and procedures.
Furthermore, the Government of Canada has prepared some instructive material for Canadians in order to ensure that they are generally better prepared for what is to come – for further information regarding health effects, traveling implications, risks of impairments (especially on the road and at work), impacts on businesses, and popular cannabis questions, please visit Cannabis in Canada: Get the facts.
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