On October 17, 2018, the cultivation, sale, distribution and consumption of certain classes of marijuana for recreational (i.e. non-medical) purposes was legalized across Canada, including fresh and dried flowers, seeds, plants and oils.
Many employers have responded to the workplace concerns arising from the legalization of recreational marijuana by implementing policies that address recreational marijuana in the workplace, including with respect to possession, use, impairment and accommodation for dependency. However, just as employers are becoming acclimated to this new legal landscape, the Government of Canada has introduced the next development in the evolution of marijuana’s legal status—the legalization of edibles, extracts and topical products.
On October 17, 2019, new regulations under the federal Cannabis Act came into force that established rules for the legal production and sale of three new classes of marijuana: edibles, extracts and topical products. These new products are expected to appear in physical and online stores beginning in mid-December 2019. The demand for legal edibles, extracts and topical products is expected to be high and their use will not always be obvious. Accordingly, the development of robust substance use policies is now more critical than ever for Canadian employers.
Existing policies used by an employer to manage the use and abuse of recreational marijuana in the workplace will likely be useful to help manage the added risks associated with the legalization of these new classes of marijuana products. But employers must be alive to the new challenges raised by legal edibles, extracts and topical products, including:
- Increased difficulty observing or assessing possession, use and impairment. Unlike marijuana which is smoked or vaped, the consumption of edibles or the application of topical products will often be odourless, and incorporated into common products, making detection all the more challenging; and
- Episodes of unintended impairment. The effects from marijuana that is ingested may differ, be delayed and last longer than the effects from marijuana that is inhaled. Employees unaccustomed or unaware of these differences are less likely to be able to manage their risk of impairment while at work.
Employers should therefore act now to ensure their substance use policies address managing and identifying impairment from marijuana that is smoked, inhaled, eaten or applied topically. The focus of such policies should continue to be on communicating the expectation that employees attend at work in appropriate mental and physical condition and remain fit for duty at all times.
By Duncan Burns-Shillington, DLA Piper