As I mentioned in an earlier post, the Senate gave Royal Assent to the Cannabis Act (Bill-C-45) and Prime Minister Justin Trudeau announced that the legislation will become effective October 17, 2018. Recently, regulations have been created (Cannabis Regulations) in order to provide further detail regarding the implementation of the Cannabis Act. You may be wondering what this means for employers.
There are two main regulations that will take effect in order to facilitate the implementation of the Cannabis Act. As mentioned previously, the Cannabis Act comes into force October 17, 2018. The Cannabis Regulations were published in the Canada Gazette Part II on July 11, 2018, but will become effective at the same time as the Cannabis Act on October 17, 2018.
More specifically, the first set of regulations is the Regulations under the Cannabis Act.
They establish the rules and standards that will apply to the production, distribution, sale, importation and exportation of cannabis by federal licence holders. More specifically, it will be necessary to have a license in order to: cultivate and process cannabis; sell cannabis for medical purposes; and conduct analytical testing of and research with cannabis. Additionally, it will be necessary to have a permit in order to import or export cannabis for scientific or medical purposes, or industrial hemp. Licence holders will be subject to strict physical and personnel security requirements. Further, there will be very specific packaging requirements for cannabis products concerning logos, colors, branding, warnings on labels, standardization symbols, and detailed product information.
Canadians can rest assured that access to cannabis for medical purposes will continue to be provided for patients who need it. That is, the Cannabis Regulations will substantively incorporate the current rules for access to cannabis for medical purposes, as set out in the Access to Cannabis for Medical Purposes Regulations. That said, some changes have been made to create consistency with rules for non-medical use of cannabis, to improve patient access, and to reduce the risk of abuse of the system. Similarly, manufacturers of prescription drugs containing cannabis, while primarily subject to the Food and Drugs Act and its Regulations, will also be subject to certain regulatory requirements set out in the Cannabis Regulations.
The second set of regulations is the Industrial Hemp Regulations.
They set out the requirements for cultivators of industrial hemp. For the most part, the new requirements are consistent with the current requirements; for instance, cultivators of industrial hemp must grow from the hemp varieties approved for commercial cultivation. However, some changes have been made in order to align licence requirements to the relatively low risk posed by industrial hemp as compared with other varieties of cannabis. The sale of hemp plants (flowers, leaves and branches) to licensed cannabis processors will be permitted to provide a source of low delta-9-tetrahydrocannabinol (THC), high cannabidiol (CBD) cannabis products.
It is also important to note that the Government of Canada will also file: Qualifications for Designation as Analyst Regulations (Cannabis); Regulations Amending and Repealing Certain Regulations Made under the Controlled Drugs and Substances Act; and the Cannabis Act (Police Enforcement) Regulations.
In summary, once the Cannabis Act and Cannabis Regulations come into force on October 17, 2018, cannabis will no longer be regulated under the Controlled Drugs and Substances Act and will be regulated under the Cannabis Act.
Moreover, effective October 17, 2018, the Government of Canada will be repealing two regulations under the Controlled Drugs and Substances Act, namely the Access to Cannabis for Medical Purposes Regulation and the current Industrial Hemp Regulations.
Furthermore, the following regulations under the Food and Drugs Act will also be amended, namely the Cannabis Exemption (Food and Drugs Act) Regulations, and the Natural Health Products Regulations.
What does this mean for employers?
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.
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 proactively 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.
With respect to the recent developments regarding the Regulations to support the Cannabis Act, employers are recommended to become familiar with the above-mentioned information in order to remain as knowledgeable as possible about implementation of the legislation as it pertains to their workplaces.
For further details regarding the Cannabis Regulations, view the document created by the Government of Canada here.
For further details regarding access, possession, health protection, concerns regarding youth, and criminal penalties, view the Government of Canada’s document entitled, Cannabis legalization and regulation.