Considerations for Employers

The legalization of cannabis for recreational purposes throws up a number of issues for employers and, frustratingly, the legislation is only the first and biggest step towards a clear legal framework. While there is bound to be litigation around several aspects of the new Act, employment law is the area likely to require the most clarification, in court.

However, there are some clear distinctions that employers will need to consider when dealing with any cannabis related issues and drafting workplace policies.

One key consideration is the difference between medicinal and recreational use of cannabis. In the past, one has been legal but the other has not. Under human rights legislation, employers have a duty to accommodate the workplace needs of any staff with a disability which might include a genuine medicinal need and prescription to take cannabis.

Impairment at Work

Legal, recreational use obviously will not change that, but it is not hard to imagine future employment disputes that might arise. What, for example, if an employer suspects that an employee is using a genuine and necessary prescription to mask recreational use during work time?

This and many other potential disputes would likely come down to the question of “impairment”. While employers do have that duty to accommodate people with disabilities, that does not trump several other responsibilities, such as the duty to provide a healthy and safe working environment, for example.

So, even if an employee with a disability is using only prescribed cannabis products, the duty to accommodate does not allow them to be impaired in their work. Similarly, it does not mean they cannot be disciplined for unexplained absence or being late to work, and legislation governing the smoke-free workplace still applies.

Cannabis Uncertainty

Employers should always seek up-to-date legal advice if they are uncertain about any disciplinary matters, and those with an ARAG Business Legal Solutions policy can call their legal advice helpline.

Clearly, we can look to existing rules and practices for tobacco and alcohol for guidance. There are plenty of obvious parallels. However, employers should be wary of resting too heavily on such arguments.

The legitimate medicinal use of cannabis is one distinction, but the relatively uncertain means of testing for the drug is also likely to make proving allegations of impairment even more tricky.

Testing employees for drug and alcohol use has long been a cause of workplace tension and dispute. It’s use for some professions, such as airline pilots, is largely uncontroversial. But any policy has to be reasonable and appropriate to the employee’s work and testing for cannabis simply isn’t as accurate or meaningful as the established tests for alcohol consumption and impairment.

Mitigating Litigation

This is further uncertainty that will inevitably result in more litigation.

One thing that is certain, is that the position for employers will only become clearer in the months and years to come, as implementation of the Cannabis Act and subsequent litigation provide some clarity.

It is yet another area of law that employers will need to keep an eye on, to ensure that their policies and procedures are up-to-date and legal. Businesses without in-house or retained legal support are likely to need ongoing advice to negotiate this new employment law minefield.

Whether they need help establishing workplace policies or have a more specific legal issue to deal with, ARAG’s Business Legal Solutions policyholders can get legal advice over the phone on any matter and are insured against the legal costs of an employee bringing a case against the business.


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