For many Canadians, the legalization of cannabis on October 17, 2018 came and went without incident, save for supply shortages at dispensaries and online providers nationwide.
However, now that cannabis has been legal from coast to coast for several months, certain cannabis-related trends are emerging among Canadian businesses which go beyond the more straightforward question of how to adjust workplace impairment policies to account for recreational cannabis consumption.
At Miller Thomson, our Labour Relations and Employment Group is following these trends, and can provide you and your business with practical advice on labour, employment, and human rights issues involving cannabis and your workplace.
1) Off-duty consumption
Employers across Canada have taken different approaches to the off-duty consumption of cannabis by their employees, which can be confusing for employers in search of best practices within their own industry.
For example, the Canadian transportation industry, which is subject to stringent Transport Canada regulations, has taken a variety of approaches towards employees in “safety-critical positions”. Major airlines have adopted a complete ban on the off-duty use of cannabis by safety-critical employees. On the other hand, regional transportation authorities have adopted a patchwork of approaches; some have adopted a complete ban approach for safety-critical employees and contractors in a variety of job classifications, whereas others allowed the operating companies for each form of transportation (e.g. bus, light rapid transit) to develop their own policy.
A complete ban on an employee’s off-duty consumption of cannabis may seem less complicated to enforce than a more nuanced approach that permits employees to consume cannabis while off-duty. However, it also involves a higher degree of intrusion that requires employers to provide a greater degree of justification. Before imposing a complete ban on off-duty consumption, employers should consider the nature of their operations, the nature of the employee’s work, and whether the off-duty consumption of cannabis affects the ability of an employee to properly discharge their employment obligations.
2) Coverage of medical marijuana by benefit plans
The legalization of recreational cannabis may leave employees with the impression that cannabis is now accepted in all facets of their personal and working lives; however, this is not necessarily the case, as demonstrated by a recent Ontario Human Rights Tribunal decision.
In Rivard v. Corporation of the County of Essex and Green Shield Inc., 2018 HRTO 1535, the dependent of an Essex County employee brought a complaint against their partner’s employee benefits provider after being denied coverage of the cost of their medicinal cannabis, alleging that the benefits provider had a “bias against cannabis use”. However, the complaint was summarily dismissed by the Tribunal, which concluded that the mere fact that an employee is prescribed medical cannabis does not create a connection between their disability and the decision to deny coverage.
Rivard is just one recent example of how Canadian courts and tribunals continue to find that the decision to not reimburse employees for the cost of medicinal cannabis through an employee benefit plan is not necessarily discriminatory.
3) Cannabis-related businesses
The past few months have been marked by significant growth and change across the Canadian cannabis industry. From “micro-cultivators” to large scale producers, new cannabis-related companies are making their entrance into the Canadian market at a rapid rate. Taking note of this trend, CBC recently reported that Health Canada has received 83 applications for micro-cultivation licenses as of January 2019.
If you are an employer that is fresh on the scene in the Canadian cannabis industry or a business that is expanding its existing operations, you should consider whether your company is prepared for these changes from a human resources standpoint. From having up-to-date employment agreements for your newly hired employees, to ensuring that your workplace policies effectively guide the conduct of your employees, taking proactive measures to make sure that your company operates in compliance with employment standards, human rights, and privacy legislation could mitigate the risk of encountering problems later on as your company grows.
If you are an employer who has questions about, or would like assistance with, the impact of the legalization of cannabis on your business, Miller Thomson’s Labour Relations and Employment Group would be pleased to assist you.