Marijuana in the Workplace – Are You Ready?

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The federal government is legalizing recreational use of marijuana/cannabis effective October 17, 2018 – the Cannabis Act (Bill C-45). Ontario’s Cannabis Act, 2017 will govern the details of legalization including purchasing, possessing, and using cannabis. Until then it remains illegal other than for authorized medical or research purposes.

There are different rules for recreational cannabis and medical cannabis.

General rules for recreational cannabis in Ontario:

  • You can possession a maximum of 30 grams (approximately 1 oz.) of dried cannabis in public at any time.
  • You must be 19 or over to possess, consume, attempt to purchase, purchase or distribute cannabis.
  • Ontario Cannabis Store is the only store that can legally sell recreational cannabis and must follow strict rules set by the federal government
  • Can grow up to 4 plants per residence (not per person). You can purchase seeds and seedlings from the Ontario Cannabis Store.

Cannabis in the Workplace

 

Legislation

Workplace

Motor Vehicles

Cannabis

Cannabis Act, 2017[1]

Prohibited to consume
s.11(1)(b)

Prohibited to consume
s.11(1)(c)

Smoking Cannabis

Smoke-Free Ontario Act, 2017[2]

Prohibited:

Smoking lighted tobacco, medical cannabis, and electric cigarettes are prohibited in enclosed workplace
s.12(1), (2)

 

Medical Cannabis

Cannabis Act, 2017

And

Smoke-Free Ontario Act, 2017

May be used in workplace subject to prohibitions set out in Smoke-Free Ontario Act, 2017

s.11(2)[3]

Prohibited to smoke cannabis, have lighted medical cannabis, use an electronic cigarette containing medical cannabis or have an activated electronic cigarette containing medical cannabis in a motor vehicle

s.17(1)(e) Smoke-Free Ontario Act, 2017

s.7 Places of Consumption, O.Reg 325/18 [not yet in force]

 

Medical Cannabis

Employee Rights

Prescription/Info.

Accommodation

Generally

Medical cannabis may be consumed in a public place, workplace, vehicle or boat, or any prescribed place subject to prohibitions set out in the Smoke-Free Ontario Act, 2017.

ss. 5 and 11(2) of Cannabis Act, 2017.

 

The only way to purchase medical cannabis is from a federally licensed producer online, by written order, or over the phone and delivered by secure mail.

 

In the Workplace

A prescription for medical cannabis does not entitle an employee to:

  • Be impaired at work
  • Compromise his/her safety and the safety of others
  • Smoke in the workplace
  • Unexcused absences or late arrivals

 

Authorized users of medical cannabis do not have to tell their employer about it unless they are:

  • In a safety-sensitive position
  • Seeking accommodation in the workplace for consumption of medical cannabis

In the event that an employee has requested accommodation to consume medical cannabis during hours of employment, then the employer should request the employee provide the following information from his/her health care professional who has prescribed the medical cannabis[4]:

  • Copy of prescription
  • Confirmation that the medical cannabis is required to treat a disability or illness
  • Confirmation that it is necessary for the employee to medicate while at work
  • Details of usage, including:
    • Frequency of use
    • Amount to be used
    • Method of ingestion
    • Strain/type of medical cannabis
    • Whether there is a strain/type of medical cannabis that is more suitable for consumption in the workplace
  • Whether consumption of the medical cannabis will cause impairment
  • Whether the consumption of medical cannabis will influence the employee’s cognitive ability or judgment
  • Whether there are any side effects of the medical condition being treated with the medical cannabis that should be considered
  • When the employee is expected to get better and no longer requires the use of medical cannabis

Once an employee has requested accommodation for the use of medical cannabis in the workplace and has provided the requested information, employers should consider what accommodation may be provided to the employee in order to use medical cannabis while at work which may include the following:

  • Moving the employee out of a safety-sensitive position
  • Providing breaks that permit the required use of the medical cannabis
  • Implementing alternative scheduling
  • Altering employee’s duties
  • Designating a location where the employee can use medical cannabis during working hours[5]

 

Workplace Policies

Employers should review their workplace policies to ensure the following:

  1. Drug and Alcohol Policy includes cannabis and expectations when an employee states or there is an observation that the employee has a substance abuse problem.
  2. Smoking Policy deals with a definition of the types of smoking products prohibited in the workplace and what an employee should do when seeking accommodation in the workplace for the use of medical cannabis.
  3. Accommodation Policy is inclusive of medical cannabis use in the workplace for the treatment of a disability or illness.

We at Dale & Lessmann LLP are pleased to assist you with your questions concerning cannabis in the workplace. We can assist you in creating or modifying your workplace policies in respect of drug and alcohol, smoking, accommodation, and other workplace policies.

August 13, 2018

*****

Christina J. Wallis is a Partner lawyer practising civil litigation with a focus in Employment Law at Dale & Lessmann LLP, Toronto, Ontario, Canada, a full service business law firm. To speak to Christina please call 416-369-7832 or send an email message to her at cwallis@dalelessmann.com.

 

[1] SO 2017, c26, Sch 1 [not yet in force].

[2] SO 2017, c26, Sch 3 [not yet in force].

[3] But note that smoking medical cannabis is prohibited in enclosed workplace and enclosed public places. Also note that smoking and consuming medical cannabis is permitted in a public place that is not prohibited under the Smoke-Free Ontario Act, 2017. So essentially, employees who require accommodation to smoke medical cannabis may be permitted to smoke it in an outside location dedicated to smokers (but recreational smoking of cannabis is not prohibited).

[4] The process for a person to access medical cannabis can be found at the Government of Canada’s website.

[5] See note 3.