Edible cannabis is now legal. Should employers be concerned?
By Matthew Klinger and Lynsey Gaudin
There is a greater risk of employees reporting to work impaired as they may consume cannabis orally, but misjudge the extent or duration of the resulting impairment.
Recreational cannabis usage has now been legal in Canada for just more than a year.
According to Statistics Canada, from mid-May to mid-June, 16 per cent of Canadians aged 15 or older reported using cannabis in the previous three months. The significant proportion of the population who make use of cannabis means employers should be prepared to address the workplace risks created by cannabis use.
In the first year of cannabis legalization, the products available for sale were limited to dry or fresh cannabis, cannabis plants and seeds. The next phase of legalization is now underway.
As of Oct. 17 of this year, the Cannabis Act was amended to permit the sale of edibles, extracts and topical products containing cannabis. These products will not legally be available for sale before Dec. 15 due to provisions which require information about any new product to be provided to the government 60 days before the product is made available for sale.
Impairment lasts longer
Oral consumption of cannabis — such as through edibles — will cause impairment at a different rate compared to smoking or vaping an equivalent amount. A person who orally consumes cannabis instead of smoking it will take longer to show symptoms of impairment, but impairment will last for a longer period.
From an employer’s perspective, there is a greater risk of employees reporting to work impaired as they may consume cannabis orally outside the workplace but misjudge the extent or duration of the resulting impairment.
As oral consumption does not result in a lingering odour, it may also be more difficult for employers to detect an employee has recently used cannabis.
Furthermore, cannabis edibles, extracts or topicals may be used in an inconspicuous manner compared to smoking or vaping. As a result, there is an increased risk of employees consuming cannabis while at work.
Two basic principles
Employers seeking to manage the risks of cannabis use in the workplace should keep in mind two basic principles.
First, while cannabis use may be legal, that does not give employees a right to use cannabis at work, or when it may impair their mental or physical abilities at work. Employees are required to report for work fit for duty. Employers may establish policies prohibiting possession or use of cannabis or other drugs in the workplace and requiring employees to be free from impairment while at work.
The second principle is that such policies may need to be applied flexibly or be subject to exceptions where an employee uses cannabis for medicinal purposes.
Employers must accommodate employees with disabilities up to the point of undue hardship. Employers may have to consider some accommodation of cannabis use in the case of employees who use have been medically directed to use cannabis to treat a disability.
Similarly, employees with a diagnosed substance addiction may require accommodation. The extent of accommodation which an employer is required to provide depends on the specific factual circumstances of each case. However, employers are entitled to have employees work productively and safely.
Employers should examine their existing policies and practices regarding cannabis use to ensure they are prepared to address the risk of increased use.
First, if they have not already done so, employers should ensure that they have policies regarding the use of cannabis and other drugs which reflect the basic principles set out above. Furthermore, employers should ensure that any such policies are drafted to broadly cover the many different types of drugs which could impair employees, and the different methods by which those drugs could be consumed.
Policies should not be limited to smoking or vaping cannabis. Instead they should extend to any use of or impairment by cannabis or other drugs in the workplace.
Employers should also ensure that managers and supervisors are trained to be alert for signs that employees may be impaired by, or using cannabis in the workplace.
Managers and supervisors should be aware that cannabis can come in a variety of forms including edibles, extracts, or topical products. They should be prepared to enforce policies regarding the possession or use of cannabis in the workplace regardless of the form of cannabis which is used by an employee.
Managers and supervisors should be aware that an employee may be impaired even if there is no odour of recent cannabis use, and that impairment may only manifest some time after cannabis is consumed. Signs of impairment may include disorientation, poor motor skills, slower perception and sudden changes to behaviour.
Any signs of impairment should be documented. It is recommended that employers seek legal advice before implementing drug testing as there are limited circumstances where drug testing is permissible. Documentation of impairment may assist in justifying testing.
The documentation of actual signs of impairment may be important even if drug testing is performed as there are limitations to the ability of current testing methods to assess the degree to which an employee is impaired by cannabis. If drug testing cannot be performed, the documentation of impairment will be crucial to any discipline proceedings.
Employers should also be aware of their obligation to ensure a safe working environment for all employees.
If an employer has reason to believe that an employee may be impaired and may create a safety risk in the workplace, the employer should take steps to prevent any unsafe behaviour, even if the employer lacks sufficient evidence to discipline the employee who is suspected of being impaired.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.