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[HR] Marijuana Legislation & Business Best Practice

The Canada Day goal for rolling out Marijuana Legislation was always going to be a moving target for the government when it first tabled Bill C-45. But this date ended up becoming entrenched in the minds of most Canadians who were looking forward to this legislation.  Political wrangling continues to be the primary reason for delays and will probably continue for some time before the bill is finally passed. Note that the House of Commons typically breaks for the summer in just over a week, so the time crunch on this is very real, and passage of the bill “sometime this summer” seems to be the de facto new goal.

The Senate has already taken a hard look at Bill C-45 over the winter and spring and proposed over 40 amendments before finally passing it last week and sending it back to the House of Commons. On Wednesday this week, the government decided they could live with most, but not all, of those changes. Meanwhile after months of debate and revisions, our neighboring province, Quebec has adopted a law laying out the guidelines for the sale and distribution of cannabis in the province (Bill 157).

The consensus within Ontario’s marijuana Industry seems to be, that there is still a lack of definitive testing, and many employers have not educated staff on new policies. I’ll go much further to say that many employers, especially small businesses, don’t even have documented workplace polices to cover this topic.

So how can businesses/employers get prepared? I recently attended a conference on this topic, hosted by our legal partners, and here are some tips to help:

  • Step one is to get prepared, get educated and understand the differences between these products, and recreational versus medical products. The absence of information can be difficult for a lot of employers.
  • Understand that just because its legal, authorized or prescribed, it doesn’t mean that its safe.
  • The Key considerations should be Occupational Health & Safety, The Human Rights Code and Privacy.
  • However, don’t let privacy and human rights override employee and public safety.
  • The subject, the product and the science are in a state of constant evolution and new information is available almost every day.
  • Employers should create and communicate a clear, unambiguous and concise policy surrounding this subject and ensure that you customize it to your workplace. Ensure that the policy also speaks to the issue of additions/abuse and that help is available if employees should need it.
  • Employees have an obligation to disclose medicinal use or medical prescriptions to their employers, especially if there are potential impacts in the workplace.
  • Employers have an obligation to create and maintain a safe and engaging workspace, but they also have an obligation to provide an accommodation for medicinal use by employees needing to do so, to a “point of undue hardship”
  • Employers are entitled to sufficient medical information to satisfy the duty to accommodate. This includes details about limitations and restrictions, the treatment plan, Prognosis and regular status updates.
  • Recreational cannabis use impacting the workplace is not considered “protected grounds requiring accommodation” under the Human Rights Code. Essentially similar best practices that are applied to alcohol consumption or abuse at work.
  • Understand addiction and disability implications and have an EAP program for employees to use. The province of Ontario also has addition and treatment options available.
  • I would strongly caution employers from using legalization with bill C-45 as an excuse to pursue a more aggressive policy around random drug testing, which is rarely permitted and requires a high legal bar to protect workers’ human rights.
  • Currently available urine and saliva tests can detect THC — the active ingredient in marijuana — but that doesn’t indicate active impairment, and it can take between 24 and 48 hours for THC to clear the system.
  • Is important to understand that a person can test positive if they’ve been exposed to second-hand smoke in a poorly ventilated room, according to a recent study at the University of Calgary.
  • There are currently no federal labor rules about drug and alcohol testing outside the military, and successive governments since the late 1980s have stayed away from the issue.

For Beneplan clients, additional support on this and other HR issues in your workplace, is available by connecting with our in-house HR consultant at 416 863 6718 ext. 268 or hr@beneplan.ca . Additional document templates and resources are also available via the client login at our website, under the “HR Toolkit” section.