Cannabis: How to Balance Privacy Rights and the Employer’s Management Prerogative

September 24th, 2018

The new cannabis legislation involves privacy issues in that it transforms a collective prohibition into an individual choice. Although cannabis use will obviously continue to have repercussions for society as a whole, the provisions of the Cannabis Act that will come into force on October 17, 2018, make it more a personal matter. From now on, every individual will have the freedom of choice to use it.

As it is the case for tobacco, cannabis legislation does not create a right to use it, per se. However, by shifting cannabis use into the sphere of personal choice, it affords individuals certain privacy-related protections.

In Québec, the right to privacy is set out in articles 3, 35 and 36 of the Civil Code of Québec and section 5 of the Charter of Human Rights and Freedoms. The courts have held that the right to privacy covers the freedom to make decisions without undue outside influence. Everyone has "the basic ability to make fundamentally private choices unfettered by undesired restrictions".

An individual who uses cannabis may enjoy that protection to a certain degree. Because the decision to use cannabis is related to morality, it may reasonably be perceived as falling within the private sphere.

Limits on the right to privacy in the workplace

Management measures applied in the workplace to prevent cannabis use and possession are readily justifiable when those acts are illegal. However, the legalization of cannabis will require that employers find another basis for policies that restrict or completely prohibit cannabis use.

Certain acts will still be prohibited by law and may be subject to penalties imposed by employers based on the fact that they are illegal. For example, section 12 of the Cannabis Regulation Act provides that smoking cannabis in certain enclosed spaces, including "workplaces, except workplaces situated in a private residence", will be prohibited. It is worth noting that that provision does not address other methods of use. Possession of cannabis will also be restricted or even prohibited in some places.

Section 21 of the Cannabis Regulation Act provides that under their managerial prerogative, employers may regulate or prohibit acts that are not already prohibited in the workplace. The management prerogative, which has been recognized by the courts and incorporated into numerous collective agreements, allows the employer to direct the work and establish the conditions of employment.

Balancing interests

An employee’s expectation of privacy is more limited in the workplace, but the employer’s management prerogative is also subject to limits. The conditions of employment that apply in an enterprise must be fair and reasonable, under section 46 of the Québec Charter. The power to impose disciplinary sanctions is also limited by the requirement that the employer assert reasonable or valid grounds. A policy regulating cannabis use will be valid insofar as, for example, it establishes a fair balance between the employee’s right to privacy and management’s right to protect the enterprise’s legitimate interests.

The legitimate objectives that an employer may assert for making a rule or adopting a policy will depend on the specific circumstances that prevail at the enterprise. The nature of the business, the general environment and the problems experienced by the enterprise are factors to be considered.

Generally speaking, policies regulating cannabis use involve the objectives of prevention and protecting employee health. An employer may cite the scope of its obligations in that regard, given that section 51 of the Act respecting occupational health and safety is being applied with increasing stringency. Eliminating a source of danger for enterprises with positions that involve risks may justify heavier restrictions or sanctions.

Economic objectives can also be argued. An employer might prove that cannabis use raises insurance premiums or lowers employee productivity. Damage to the corporate image is another factor that could be cited.

In all cases, the respective weight of the legitimate and identifiable interests of the parties will be the determining factor. The more significant the invasion of privacy, such as in the cases of drug testing, searches and questions about cannabis use, the more the employer will have to prove genuine and serious objectives in order to establish the validity of its policy.