There are plenty of articles about the state of law regarding cannabis, but not much has been written about practical implications of cannabis legalization for in-house counsel. Here are three key points in-house lawyers should bear in mind concerning employees and cannabis use:
Employee’s duty to disclose:
In light of Stewart v. Elk Valley Coal Corp, 2017 SCC 30, an organization’s drug and alcohol policy should specify that employees have the duty to disclose a disability, including addictions. Otherwise, human rights issues may arise in the event an employee is terminated and that employee claims that the termination was based on his or her addiction. In Stewart, the Supreme Court of Canada ruled in favour of the employer whose policy required disclosure of an addiction in finding that the grounds for terminating the employee at issue was a breach of the policy, not the previously undisclosed addiction.
Drug-testing at work:
Based on Irving Pulp & Paper v. CEP Local 30, 2013 SCC 34, random testing is likely not supportable in the face of employee privacy rights, even in safety sensitive environments, unless there has been a history of frequent incidents at work. A reasonable cause testing system is likely more practical and less intrusive. This means that an employee being seen with cannabis products in the workplace or exhibiting certain signs of impairment at work – whether it be smell, uncharacteristic behaviour or bloodshot eyes – would be a reasonable cause for requesting that the employee be subject to a drug test. An organization should also train managers on these impairment signs and the importance of documenting all findings. Current methods of testing the level of cannabis in bodily fluids unfortunately do not indicate the extent of impairment, so an organization has to rely on the observations of its managers for the time being.
Training about drugs and alcohol:
There are companies or resources that can provide training to organizations and employees on drug and alcohol awareness. For example, The Canadian Centre for Occupational Health and Safety lists the below associations that offer training programs:
- Cann/Amm Occupational Testing Services, Drug and Alcohol Awareness Training
- Driver Check Online Supervisor Training
Of note, companies varied on how they described cannabis use for medical treatment. One training solution (not listed above) stated broadly that medical cannabis was a drug that helped many health issues, and then proceeded to list all of the health issues. I was left with the impression that it was some kind of miracle solution.
Other companies’ presentations were more detailed. Two I attended cited recent February 2018 guidelines published by the College of Family Physicians of Canada (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5964385/), which stated that medical cannabis should be used as a medicine for only specific conditions where there was scientific evidence of improvement. The current evidence shows that cannabis may assist with chronic pain, nausea and vomiting associated with chemotherapy, and spasticity of neurologic conditions like multiple sclerosis. However, there are likely more adverse effects outweighing the known benefits, and therefore if used for medical treatment, cannabis should be one of last resorts after other drugs have been attempted for treatment.
Choosing the right drug training program is important to fully educate employees. With this, along with the right elements in its drug and alcohol program and policy, an organization will be able to reduce risk in safety and human rights issues.
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