By: Roxalie LeBeau-Hébert
Global Information
- History of Bill C-45
The Cannabis Act (Bill C-45) decriminalizes cannabis and provides for the federal government to licence its producers. Bill C-45 was approved on June 20, 2018. According to Prime Minister Trudeau, Canadians will be allowed to consume marijuana recreationally without fear of criminal penalties starting on October 17, 2018.[1]
- What Bill C-45 Allows
Once in effect, Bill C-45 will allow adults, subject to provincial or territorial restrictions, to :
- Purchase cannabis, from retailers authorized by the provinces and territories;
- Consume cannabis in locations authorized by local jurisdictions;
- Possess up to 30 grams of dried legal cannabis or equivalent in non-dried form in public;
- Share up to 30 grams of dried legal cannabis with other adults;
- Grow up to four cannabis plants per household;
- Make legal cannabis-containing products at home such as food and drinks (making them with dangerous organic solvents is not permitted).[2]
2. NB Specific Regulation
The New Brunswick Working Group on the Legalization of Cannabis has made the following recommendations for the regulation of cannabis in NB :
- 19 be set as the legal age for possession and consumption;
- Personal possession limit be set at the federal limit of 30 grams;
- The restrictions applied to where tobacco can be smoked in public will also apply to cannabis[3];
- Penalties for cannabis-impaired driving will be identical to penalties for alcohol-impaired driving under the Motor Vehicle Act and the relevant sections of the Criminal Code (Bill C-46).
Main Point
The legalization of cannabis does not alter the rights and obligations of employers and employees with respect to the consumption of drugs and alcohol in the workplace or the performance of work under the influence of these substances.
Mainly, the use of marijuana will be treated much like the use of alcohol in the workplace.
Rights of Employees and Employers
Employers still have the duty to prevent the risk of being impairmed at work. They have the responsibility to ensure the health and safety of their employees both physically and psychologically. In accordance with their obligation of prevention and protection, employers will retain the right to regulate the use, possession and trafficking of cannabis at work as they currently do with alcohol and other drugs. Employers may prohibit or control employee rights to limit the influence of cannabis on their performance at work. For instance, employers may control cannabis use during employee breaks and fixed periods of time before starting work.
Case law already allows employers to require its employees to be unimpaired at work. In order to satisfy their responsibilities and ensure the safety of the workplace, employers are legally entitled to test the abilities of their employees using reasonable methods. For example, in safety sensitive positions, employers are generally allowed to test employees for drugs and or alcohol for cause, but are not generally allowed to randomly test. The legalization of marijuana will not change this.
Responsibilities of Employees
Employees must be competent and capable to work and they must work diligently. They have the obligation to ensure that they do not jeopardize the health, safety or physical well-being of their colleagues in the workplace. Failure to do so may result in disciplinary action and even termination of employment. Employees must know that their consumption habits should not affect their professionalism, as alcohol and drugs could have a significant effect on their behavior at work. In fact, employees must take care of their personal appearance and pay attention to their work habits and attitude. In short, the legalization of cannabis does not downgrade the responsibilities that we find reflected in all working relationships.[4]
Controversies in Cannabis Testing
The reliability of cannabis screening is controversial especially because levels of THC (the active ingredient in marijuana) do not match impairment levels. In other words, contrary to alcohol, marijuana can be detected in the bloodstream days or even weeks after ingestion. This means that there is currently no medical test that accurately or reliably indicates a person’s level of ability due to the use of marijuana.[5]
Most experts agree that despite this uncertainty, a “per se” limit that sets a limit for THC levels in the bloodstream is the best approach to take as it standardizes testing. The disadvantage of this approach is that it does not necessarily assess intoxication and the overall effect on the person.
There are other approaches used in jurisdictions where cannabis has been legalized :
- The “zero tolerance” policy, where no evidence of THC allowed in the bloodstream;
- The effects-based approach that for its part, assesses the impact of cannabis on the individual’s ability to perform a specific task (driving, operating machinery, etc.).
However, the “zero tolerance” approach could lead to several controversies regarding off-duty behavior.[6]
Addictions
Employers are required to accommodate drug-dependent employees, including cannabis users. This requirement applies only to employees with a real problem of dependency and not to an employee who is a recreational consumer. Among other things, employers are required to make reasonable accommodation and do everything up to the point of undue hardship to facilitate the adaptation of their dependent employees in the course of their duties. In an unionized environment, any accommodation must be in accordance with the collective agreement. Employees with substance abuse who seek accommodation from their employer may be responsible for enrolling in a program that would facilitate their rehabilitation.[7]
Conclusion
In summary, the recreational use of marijuana will be treated similarly to the use of alcohol in a workplace. It would be wise for employers to introduce a policy for employees regarding the rules of the workplace and the tolerable use where applicable. The employer should draw a strict boundary line between workplace safety and its obligation to accommodate an employee’s legitimate medical need or drug or alcohol dependence.
Finally, the legalization of marijuana for recreational purposes does not imply that employers can tolerate or permit use in the workplace.
[1] John Paul Tasker, “Trudeau Says that Pot Will Be Legal As of October 17, 2018”, CBC News, June 20, 2018: https://www.cbc.ca/news/politics/cannabis-pot-legalization-bill-1.4713839
[2] Government of Canada: Bill C-45, the Cannabis Act, passed in the Senate: https://www.canada.ca/en/health-canada/news/2018/06/bill-c-45-the-cannabis-act-passed-in-senate.html
[3] Smoking in public places is regulated by the Smoke-free Places Act.
[4] Brown & Beatty Canadian Labour Arbitration, Chapter 7 — Discipline.
[5] Marijuana and the Canadian Workplace: Canadian Lawyer Magazine: http://www.canadianlawyermag.com/author/sandra-shutt/marijuana-and-the-canadian-workplace-3378/
[6] Brown & Beatty Canadian Labour Arbitration, Chapter 7:3010 — Off-duty Behaviour.
[7] Ontario (Liquor Control Board) v. SEFPO (Anagnostopoulos), 276 L.A.C. (4th) 109, paragraphs 52 and 82.