What legal consequences does the upcoming legalization of adult use cannabis in Canada bring to workplace environments

Come October 17, how will the new rules affect your everyday lives? – Are smoke breaks at work going to be different? What will driving under the influence mean, especially if driving is part of your job? How are employers preparing for this change to ensure they have the right policies in place?

Canadian Cannabis Companies

While it is hard to say exactly how many cannabis companies exist today in Canada, a simple google search will bring up a multitude of articles from benefits of using medicinal marijuana to social impacts and even which stocks to buy.

To-date 118 licenses to produce Cannabis have been issued by the Canadian government (see: https://www.canada.ca/en/health-canada/services/drugs-medication/cannabis/licensed-producers/authorized-licensed-producers-medical-purposes.html#a2), and there are generally two types of Cannabis companies: those that have been “licensed” by Health Canada and those that have applied for a license with Health Canada.  

The Canadian government provides information on licensed cannabis companies (see Health Canada Link to Licenced companies: https://www.canada.ca/en/health-canada/services/drugs-medication/cannabis/licensed-producers/authorized-licensed-producers-medical-purposes.html).

How will Cannabis sales be regulated

In Canada, the Constitution Act 1867 and judicial interpretation over the years has placed the powers to deal with Cannabis sales and related operations within the control of the Provinces and territories.  They will have the ultimate ability to set rules around (a) how cannabis can be sold, (b) where stores may be located, (c) how stores must be operated.

Provinces and territories will also have the flexibility to set added restrictions on lowering possession limits, increasing the minimum age, restricting where cannabis may be used in public, and setting added requirements on personal cultivation

The Ontario government has set out specifics on how many plants you can grow per residence to where Cannabis can be used or enjoyed.  Fines for improper use (ie. smoking at work), or serious penalties for use while driving are big considerations everyone should be aware of.

A link to the government of Ontario’s new rules can be found at: https://www.ontario.ca/page/cannabis-legalization.

Cannabis in the workplace

If you are a business owner, what liability exists for you if your employees are arriving under the influence of cannabis.  Depending on the strain of Cannabis being used how will an employees performance be impacted? Are they operating heavy machinery or managing sensitive information and unable to concentrate?  What happens if they choose to sit in their car or walk during lunch and use cannabis then return to work. How will employers be able to assess the ability to function or performance on the job?

How will the legalization of cannabis change the workplace in Canada?

To what extent will employers be liable if an employee chooses to smoke at the end of a shift or after work on business premises then decide to drive home?  Obviously, responsibility lies with the cannabis user (just as it does with the alcohol drinker) but employers should consider instituting the following changes:

• Ensure a new policy is instituted company-wide that deals with the use of cannabis and specifically sets out unacceptable behavior
• Implement a warning system
• Make it clear that serious consequences, such as calling the authorities or termination of employment, may arise for breaches of the company policy.

Speak to others in your industry or industry organizations to find out more about creating a cannabis use policy or adding provisions to your existing policies and procedures.  If you have nowhere to find this information or don’t have time to search contact a corporate lawyer or employment lawyer to help – either to review and comment on your policy or to create one for you. Business owners need to protect what is typically their biggest asset so take action before you get too busy and forget.