Paid Recreational Cannabis Legalization: Are your HR policies ready?

Did you know, medical cannabis has been legal in Canada since 1999? Since then there have been numerous amendments to the laws, as well as a significant increase in Canadians who have purchased medical cannabis. According to Health Canada – approximately 167,000 Canadians were recipients of medical cannabis during the last quarter of 2016/2017. The number of cannabis users will only continue to rise with the legalization of marijuana.

The legalization of marijuana creates new challenges for Canadian employers. As a result, there is an increased need for finalizing regulation in so far as its impact in the workplace. In 2017, the Human Resources Professional Association (HRPA) conducted a survey of approximately 650 HRPA members between June 1, 2017 and June 9, 2017. This survey found that approximately 45% of respondents did not conclude that their existing workplace policies address issues that may arise with the legalization of cannabis in the workplace.

The same survey also concluded that the top 5 concerns on impact on the workforce include:

• Employees operating motor vehicles;
• Disciplinary procedures;
• Decreased work performance;
• Employees using heavy machinery; and
• Attendance.

The Cannabis Act is intended to create a legal framework for the sale and possession of cannabis for recreational purposes in Canada. The Act deals with access to quality-controlled cannabis, producing small amounts of cannabis, or designating an individual to produce it for them. However, the Federal Cannabis Act doesn’t lay out restrictions or guidelines on its use in the workplace, since employment legislation and regulation is an area of provincial jurisdiction. Without determining a legal structure around workplace use, Canadian employers will be faced with new challenges with respect to recreational cannabis use as it pertains to workplace safety. However, employers must remember that existing rules on medical use will continue to operate alongside the Cannabis Act. That means accommodations must be made for medical use employees, like any other employee taking a prescribed medication.

Some things that employers will now need to consider, since the Cannabis Act is law and will come into effect on October 17, 2018, are:

• Setting out a clear legal definition of “impairments” and the grounds under which an employee can be tested in relation to cannabis use;
• Regular review of ongoing legislation and developments and updating employee policies accordingly;
• Not assume that using medical cannabis will impair an employee’s ability to do their job. Instead inquire as to whether the employee will be able to perform the essential duties of the job and what kinds of accommodations may be necessary; and
• Employers should enact a clearly outlined drug policy.

With cannabis legalization soon approaching and the number of registered cannabis users on the rise – Canadian employers will need to be prepared for a rapidly changing and developing legal landscape with regards to workplace safety and HR policies. In addition, many small businesses do not have an in-house Human Resources (HR) department. As a result, Canadian employers will need to routinely seek support and guidance from qualified legal resources on issues ranging from determining impairment to safety-sensitive work places.

David Smagata – Vice President, Claims & Chief Legal Officer

As Chief Legal Officer and an Insurance Executive, David Smagata leads Claims, Compliance, and Legal in the management of compliance risk, liability and litigation, and corporate oversight for DAS Legal Protection Inc. With almost 20 years of experience in litigation, in conjunction with strong managerial and operational background experience, David brings an insightful and proactive approach to legal issues and a unique ability to solve complex legal and corporate challenges in the financial services field.