As part of this year’s TRU SLS Conference, Dentons Vancouver labour and employment lawyer Taylor Buckley spoke on the current laws around recreational cannabis use in the workplace, along with some of the uncertainties that accompany them. Buckley primarily focused on workplace health and safety, human rights, privacy and cross-border issues.
With the legalization of recreational marijuana and the cannabis act coming into effect last October, this created many regulatory changes around the use and possession of the substance. Adjustments to the criminal code and pre-existing public use and health laws had to be made to accommodate the act within the legal system. Despite the numerous statutory changes to the use of recreational cannabis, Buckley says not much has changed for employers with the way marijuana is regulated in the workplace, particularly regarding impairment.
“The focus is still on impairment, you still can’t be impaired at work, so nothing has really changed except that hopefully employees aren’t thinking, ok well it’s legal now, I’m going on lunch break to smoke a joint,” he said. “To me this transition has been a big educational piece for employers to say, here’s what’s happening, here’s what your obligations are, you’ll notice that they’re the same as when they were on Oct. 16 (the day before legalization), don’t do anything that’s going to get you in trouble.”
“The last thing you want is to be dealing with an employee who’s good but has made a mistake because they didn’t understand what their obligations are at work,” Buckley added.
In British Columbia under the Human Rights Act, employers have a duty to accommodate disabilities under undue hardship. Buckley expresses that the employer has an obligation to take reasonable steps to accommodate the disability in the workplace. The key word being reasonable, not perfect. For the most part, as long as the employer isn’t discriminating against anyone, the employer is fair game to set the rules or policies they want.
“If someone (an employee) comes to their employer and says, I have this prescription for medical cannabis, the employer can’t say that’s too bad you’re fired. It also doesn’t mean they can say ok, nothing changes,” he said. “The employer has to make efforts to accommodate that disability in the workplace up to a certain point, that point is called undue hardship.”
Unlike testing for alcohol impairment, where a standard can be set using a breathalyzer, there currently isn’t a reliable way to test for cannabis impairment. It becomes a severe grey area, particularly in human rights cases.
“There is no test for impairment when it comes to cannabis which makes it very difficult to apply the framework of impairment or to assess it in the workplace,” he said. “We’ll see how that goes as the testing develops, which I’m sure it will because not only is the government going to work on that for the enforcement of the criminal code, but employers in places like mines and other safety-sensitive positions are going to be very interested in that technology being available to them.”
Taking cannabis or any product containing marijuana in or out Canada is illegal and can result in severe criminal penalties both domestically and abroad. Buckley adds it’s a very sticky situation for those involved in the cannabis industry internationally.