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Proposal to legalize marijuana: What does this mean for employers?

marijuana“Marijuana use may become legal, and employers may need to review and amend their workplace policies and procedures to reflect this (changing the status of cannabis from illegal to legal) – but employers would still be able to restrict the use and possession of cannabis in the workplace in order to ensure a safe and productive workplace.”

On April 13, 2017, Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, was introduced by the federal government in order to enact the Cannabis Act. You may be wondering, what does this mean for employers?

Still at the first reading stage, Bill C-45 aims to prevent young persons from accessing cannabis, protect public health and public safety by establishing strict product safety and product quality requirements, deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework, and reduce the burden on the criminal justice system in relation to cannabis.

Bill C-45 is a lengthy document with many parts, but for the purposes of this discussion, generally speaking, Bill C-45 creates criminal prohibitions and associated penalties involving unauthorized possession, distribution, selling, importing and exporting, production, and using a young person in the commission of one of these offences. There are additional prohibitions involving promotion and false promotion, packaging and labeling, display, selling and distributing, and obstructing an inspector.

Although the prohibitions form a large part of Bill C-45, there is a lot more to this document. Some of the other aspects of Bill C-45 include: the procedure is set out for ticketable offences; the procedure is created for licences and permits; the rules are established for provinces authorized to sell or distribute cannabis; authorizations are given into the Minister to make orders concerning product recalls, information, conducting tests or studies, and preventing non-compliance; a cannabis tracking system is created to enforce provisions; procedures are set out regarding inspections, search warrants, and seizure of cannabis and other property; and administrative monetary penalties are created to name a few.

In a nutshell, the key highlights affecting employers the most include:

  • Adults 18 and older would be allowed to possess up to 30 grams of dried cannabis or its equivalent in public, share up to 30 grams of dried marijuana with other adults, and buy cannabis or cannabis oil from a provincially regulated retailer. They would also be permitted to grow up to four plants per residence for personal use, with plants not to exceed one metre in height, as well as make legal cannabis-containing products (food or drinks) at home
  • The existing program for access to medical marijuana would continue as it currently exists
  • The Non-smokers’ Health Act would be amended to prohibit the smoking and vaping of cannabis in federally regulated places and conveyances (“smoke” means to smoke, hold or otherwise have control over an ignited tobacco product or ignited cannabis)
  • It would be a serious criminal offence to sell the drug to a minor or engages young person in “cannabis-related offences”
  • Initially, sales would only entail fresh and dried cannabis, cannabis oils and seeds and plants for cultivation. Sales of pot-infused edibles would follow at a later time once regulations for production and sale are developed. Sales by mail or courier through a federally licensed producer would be allowed in provinces that lack a regulated retail system
  • Possession, production and distribution outside the legal system would remain illegal. It would remain illegal to import cannabis and cannabis products, and to export them without a valid permit. Permits would be issued for certain purposes, such as medical cannabis and industrial hemp
  • It would be prohibited to sell cannabis in a package or with a label that could be construed as appealing to young people, to include testimonials or endorsements, or to depict a person, character or animal
  • Provinces, territories and municipalities would be able to tailor rules for their own jurisdictions, enforcing them through mechanisms such as ticketing. They would also be allowed to set their own licensing, distribution and retail sales rules, establish provincial zoning rules for cannabis businesses, and change provincial traffic safety laws as they deem necessary (including setting minimum ages)
  • Travellers entering Canada would still be subject to inspections for prohibited goods, including cannabis
  • New penalties would range from a simple police citation to 14 years imprisonment. It is important to note that there would be a zero-tolerance approach to drug-impaired driving

The only mention of employees in Bill C-45 involves the provisions regarding general authorizations: employees of persons who are authorized under the Act to sell, distribute, or produce cannabis may do anything that is prohibited in the Act if they do so as a part of their employment duties and functions and in a manner that is consistent with the employer’s authorization.

Other than a few sections, namely sections 161 (regulations), 188 to 194 (coordinating amendments), 199 to 202 (amendments to the Controlled Drug and Substances Act), 206 (coordinating amendments regarding Bill C-37) and 225 (amendments regarding the Criminal Code), the provisions would come into force on a day or days to be fixed by order of the Governor in Council. The target date is June 2018 to legalize the use of cannabis across Canada.

You may be wondering, how do these developments impact the employment context? What will happen if an employee comes to work impaired from marijuana use? Employers can rest assured that, as with legal recreational alcohol use, the legalization of recreational marijuana would not suddenly give employees the right to use marijuana before arriving or at the workplace and recklessly do their work, endangering co-workers and performing poorly. Marijuana use may become legal, and employers may need to review and amend their workplace policies and procedures to reflect this (changing the status of cannabis from illegal to legal) – but employers would still be able to restrict the use and possession of cannabis in the workplace in order to ensure a safe and productive workplace.

Having said this, it is important to remember that employers would still have to respect to the accommodation requirements under human rights legislation for those employees who are suffering from particular medical conditions where they 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.

With that 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. It is recommended that employers create policies and procedures for addressing marijuana use in the workplace – if unsure of how to approach this issue, employers are recommended to seek legal advice.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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