It’s October 17, 2018, and it’s official – recreational cannabis is now legal in Canada.
Under the Federal Cannabis Act, Canadians who are 18 years of age or older are now permitted to possess up to 30 grams of cannabis, share up to 30 grams of cannabis with other adults, purchase dried or fresh cannabis from a provincially licensed retailer; grow up to four cannabis plants per household for personal use. The sale of cannabis-infused food and drinks is not expected to come into effect nationally until 2019, as regulations are still being developed. However, under the Cannabis Act people are able to purchase cannabis legally and make their own cannabis infused food and drinks at home for their own personal use.
It’s important to note that what is allowed with respect to recreational cannabis possession and use may be different across the provinces, as the Federal Government has made each province responsible for regulating the sale and distribution of recreational cannabis within its jurisdiction. Where you can and can’t consume it is also something that is province-specific. Perhaps the most notable differences in Manitoba are that the sale of cannabis is restricted to people who are 19 years of age or older, and people are not be permitted to grow their own plants at home.
The Cannabis Harm Prevention Act and The Safe and Responsible Retailing of Cannabis Act are the pieces of legislation the Manitoba Government has passed to address recreational cannabis legalization in Manitoba. In addition to setting the legal age at 19 and the prohibition against growing plants at home, both of these pieces of legislation amended other laws to allow for the regulation and the sale and distribution of cannabis within the province, addressed health and safety concerns that are expected to result from the legalization of cannabis consumption, and closed some gaps that would have arisen now that cannabis is no longer an illegal drug. Some key examples, that may also be relevant in a number of workplaces, are:
- The Highway Traffic Act (and related legislation) has been amended to prohibit the consumption of cannabis in motorized vehicles on a highway; requires cannabis to be stored in a secure compartment so that it’s inaccessible to people in the vehicle (similar to the rules around open liquor); and allows for a 24-hour suspension of a driver’s license if a police officer believes the driver is under the influence of a drug and unable to safely operate a motor vehicle.
- The Non-Smokers Health Protection and Vapour Products Act has been amended to prohibit smoking of cannabis or using an electronic cigarette in any enclosed public place or indoor workplace.
- The Public Schools Act has been amended to specifically add cannabis to the list of products that are prohibited in public schools, similar to alcohol and illicit drugs.
- The Mental Health Act has been amended to ensure residential patients who are not allowed to receive illicit drugs will continue to be prohibited from obtaining cannabis.
Employers must remember that under The Human Rights Code, some cannabis users may be entitled to legal protections, while other cannabis users may not. Employees authorized to use cannabis for medical purposes and employees suffering from addictions (not just to cannabis, but any drug or alcohol) may be entitled to accommodation. None of this has changed with the legalization of recreational cannabis.
Employers are required to accommodate employees “to the point of undue hardship”, and what that looks like will vary with the facts of every case. What is important to always remember is that the fact that something is legal, or the fact that an employee requires an accommodation, does not give employees a right to be impaired at work, nor does it give anyone an absolute right to use something at work, particularly where impairment or use may endanger their own safety or the safety of their co-workers or the public. The obligation to maintain a safe workplace is required under occupational health and safety legislation, and employers must balance the right of the employee to equal treatment with the rights of the employer to maintain a safe and productive workplace.
Currently, as there is no medical test that accurately or reliably indicate the level of a person’s impairment due to cannabis use, employers may not be in a position to rely on testing as a means to address cannabis, or even other drug use, in the workplace. Further, courts in Canada have also stated that employers are required to balance employee privacy interests with the employer’s interest to use drug testing to ensure a safe work environment. When testing is permitted, and under what circumstances, varies from workplace to workplace, and even can depend on whether a job is considered safety-sensitive.
Your best tool to address recreational cannabis use, and indeed any drug or alcohol use in the workplace, is your drug and alcohol policy. Having a policy focused on fitness for duty, that sets out the clear rules for employees when it comes to drug and alcohol use, and educating and training all employees on the policy and expectations will hopefully help prevent issues from arising. If issues do arise, the policy and education that has taken place will ensure you and your managers and supervisors are equipped to address them.
If you have not already prepared for today, it’s not too late. You can still take steps to become aware of how legalization will affect your workplace and prepare to address issues that may result now that recreational cannabis is legal.
Whether you need to prepare or update your drug & alcohol policy, provide in-house training to your managers and employees on the laws and legal issues surrounding cannabis, or you need advice regarding testing or navigating accommodations of employees with medical needs or addictions, Taylor McCaffrey LLP’s Labour & Employment Practice Group at is available and ready to provide any assistance you might need.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.