On June 21, 2018, Bill C-45, now known as the Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts (hereinafter the “Act“), was passed by the Federal government. As of October 17, 2018, cannabis will be legal in Canada. Consequently, the legalization of cannabis will have a major impact on labour relations in Quebec. Therefore, the purpose of this memo is to give employers a general picture of the measures that should be taken in light of these changes, and the situations to which they should pay particular attention.

  1. General Framework

Employers and Employees are subject to different rights and obligations. Indeed, according to the Civil Code of Quebec, employers must provide employees with a work environment that protects their health, safety and dignity. In return, employees must perform their work in a prudent and diligent manner as a “reasonable person” would in a similar situation. In addition, the employer must respect the rights granted by the Canadian and the Quebec Charter, including the right to privacy and equal treatment without discrimination. These rights and obligations impose the limits within which employers can exercise their management power over employees.

Since cannabis is illegal until October 17, 2018, its mere possession has historically been considered by employers as a serious offence and sometimes justified the imposition of disciplinary measures such as dismissal. However, in the future, in the absence of a clear company policy concerning cannabis, simple possession of cannabis in the workplace will no longer justify such measures.

With respect to the new cannabis-specific legislation, only a few regulations will directly address labour relations. First, section 12 (15) of the Act to Constitute the Société Québécoise du Cannabis, to Enact the Cannabis Regulation Act and to Amend Various Highway Safety-Related Provisions (hereinafter the “Quebec Act”) prohibits smoking cannabis in enclosed workplaces (for example, in a building). Second, driving a vehicle while under the influence of cannabis is prohibited. Naturally, this prohibition will  include impaired driving during employment. Third, the Act Respecting Occupational Health and Safety will prohibit employees from working when they present a danger to themselves or their colleagues when their faculties are impaired. This final amendment explicitly mentions cannabis.

These three new provisions provide a clearer  framework for cannabis use in the workplace. However, in our opinion, they are incomplete. We will present solutions later in this memo to counteract the potential consequences of the legalization of cannabis in the workplace.

  1. Consequences of the legalization on the working environment

Apart from the above-mentioned changes, the legalization of cannabis will not change the rights and obligations of employers and employees. To this end, as is currently the case with alcohol, consumption during work hours can likely harm an employee’s obligation to provide adequate work. Consequently, without it being caused by alcoholism or drug addiction, disciplinary action or even dismissal may be justified upon the repeated failure of alcohol or cannabis consumption during work hours. However, when an employee suffers from a substance abuse problem, employers have a duty to reasonably accommodate under the Canadian and the Quebec Charter. Indeed, the courts have long recognized alcohol and drug abuse as a disability.

Furthermore, one of the issues raised concerning workplace cannabis use for employers is their ability to issue drug tests. However, these tests have been a sensitive subject for years since they raise the question of the employee’s right to privacy and integrity. Moreover, it is known that traces of cannabis can remain in the blood for several days following its consumption. Consequently, the interpretation of the results obtained by the tests are more complicated. Therefore, employers should  ensure that their policies are written in a way that meets the criteria imposed by the courts before imposing any tests whatsoever, such as the existence of reasonable grounds to believe that their abilities are impaired, before imposing any tests whatsoever [1].

  1. Recommendations

As previously mentioned, a well-written policy that takes into account the workplace reality can save an employer many headaches. In this regard, here are a few points to address when drafting your company policy.

    1. Policy to adopt

It is important to determine your level of tolerance to your employees’ recreational cannabis use. First, you will need to determine whether moderate consumption in the workplace and during work hours is accepted or prohibited. You will then need to determine your tolerance level towards cannabis use at social events.

For example, if such a policy is justified, you could have a “zero tolerance” policy for cannabis use during work hours. However, you will also have to decide your position on cannabis use during business dinners. As is currently the case with alcohol, would you allow your employees to consume cannabis in moderation when meeting with clients? Would you tolerate cannabis consumption at social events? Finally, upon the legalization of cannabis, what penalties are to be imposed in either situation for violation of your company policy? In order to avoid ambiguity, it is better to have a well-written company policy that addresses these issues, and much more.

    1. Awareness and disclosure

As the saying goes, “better safe than sorry”. This philosophy can save you a lot of time and trouble. A few awareness sessions about the dangers of working under the influence of cannabis, and the obligations of employees towards an employer, can save you from having to impose disciplinary measures. In addition, a policy of voluntary disclosure and support for substance abuse problems will prevent you from being caught off guard and will help you in the treatment of these situations while respecting your obligation to reasonably accommodate.

  1. Conclusion

Although the federal and provincial bills concerning the legalization of cannabis are weak in terms of working conditions and employer-employee relationships, being prepared before October 17, 2018 will give you all the tools you need to face the coming changes head on. Please do not hesitate to contact our Litigation and Labour Law team to ensure that your policies are consistent and responsive to these changes.

[1] Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 CSC 34.