Marijuana Legalization: What to expect for employers?

April 19th, 2018

First of all, let’s not forget that the federal government wanted the bill to come into force at the latest in July 2018, but the date has been officially postpone until at least August 2018. If the bill is sanctioned, anyone over the age of 18 will be able to legally possess up to 30 grams of cannabis.

However, it would be wrong to assume that because cannabis will be legalized, employees will be able to smoke freely in the workplace.

Establishing effective monitoring measures

As with the use of alcohol, an employer may legitimately require that its employees do not work under the influence of drugs. In this regard, an employer have the ability to discipline employees who contravene its policies or whose consumption would be detrimental to their performance or pose a risk to health or safety.

Before the entry into force of the bill, you should think about reviewing your existing internal policies and procedures and adapting your disciplinary measures to take this new reality into account in order to provide for new effective monitoring and control means.

As such, current case-law states that an employer is justified to require an employee to submit himself to a screening test, in the following circumstances:

  • when there are reasonable grounds to believe that an employee is impaired by drugs or alcohol;

  • following a serious accident for which the employer has reasonable grounds to believe that drugs or alcohol is involved; and

  • with respect to an employee with recognized drugs or alcohol problems.

Since 2004, Australia, France and Finland have been using salivary screening test to detect cases of impaired driving. Last spring, these tests were the subject of a pilot project by several police forces in Canada.

These measures could reveal themselves to be useful for employers. Obviously, these tests are preliminary tests that must be clinically confirmed and only use as corroboration after having recognized objective signs and symptoms of intoxication.

The proper training of your staff will be essential. This is a basic precaution to take to favour the reliability and credibility of your results in the event of a debate before the Court.

Until marijuana is officially legalized, it will be in the best interest of employers to review their policies and disciplinary measures and to train their staff accordingly to ensure that they are ready and efficient when the time comes.

To find out more about what needs to be done in your organization before cannabis legalization, feel free to contact our Labour and Employment Law team.