Legalization of marijuana for recreational use – issues and challenges for employers in Quebec

On April 13, 2017, the federal government tabled Bill C-45, which, if passed, would legalize the recreational use of marijuana. According to the bill in its current form, this legislation could be implemented by July 1, 2018 in Canada. In legalizing cannabis for recreational use, Canada would be locking step with several U.S. states. So far, eight states – Alaska, California, Nevada, Oregon, Washington State, Colorado, Maine and Massachusetts – and the federal District of Columbia have voted in favour of legalizing and regulating cannabis.¹ But what protective measures are available for employers who worry that this bill will result in more employees showing up for work while under the influence of marijuana?

Obligations

The bill to legalize and regulate the recreational use of marijuana presents a new challenge to Quebec employers in meeting their obligations, including:

• Taking the necessary measures to protect employee health and safety;
• Providing a healthy and safe work environment;
• Informing employees of the risks related to marijuana use and its residual effects when they are on the job;
• Accommodating employees struggling with drug problems; and
• Taking privacy issues into account when considering drug testing.

However, employees also have obligations when it comes to workplace health and safety, including adhering to the rules and policies put in place by the employer to protect their health and safety and the health and safety of their co-workers. Employees must also participate in the identification and elimination of risks at their workplace and report any breach of the employer’s rules and policies that may constitute a risk.

Risks resulting from the use of marijuana in the workplace

In view of the obligations imposed on employers in Quebec, legalizing recreational marijuana use will expose employers and employees to many legal challenges and risks, including:

• Increase in industrial accidents;
• Rise in employee absenteeism;
• Decrease in employee productivity;
• Development of marijuana dependence among employees, obligating the employer to accommodate them; and
• Growth in medical insurance claims.

Possible measures employers can take

To provide better guidance in situations that may arise in connection with the use and effects of marijuana, it is recommended that, as in the case of alcohol, medications and other drugs, employers adopt a clear policy on the use of cannabis in the workplace.

The THC levels set out in federal government Bill C-46, which, among other things, amends the provisions of the Criminal Code that deal with offences relating to drug-impaired driving, could serve as limits beyond which an employer would be able to consider an employee unfit for work.

More than ever before, companies need to adopt and enforce their policies. Not only that, they need to educate employees about this situation and warn them of the risks related to drug use and the residual effects, particularly of using marijuana, in the workplace.

Footnotes

¹ However, in some states, the law has not yet been enacted. See A Framework for the Legalization and Regulation of Cannabis in Canada:The Final Report of the Task Force on Cannabis Legalization and Regulation, Report chaired by the Honourable A. Anne McLellan, Government of Canada, November 13, 2016 (consulted online on March 28, 2017).