Cannabis in the Workplace: An Update

Written on behalf of Peter McSherry

In prior posts, we reviewed the issues surrounding the legalization of cannabis and its impact on the workplace.

There have been changes to what is legal consumption of cannabis as of October of this year, specifically as of October 17, 2019. Three new classes of cannabis have now become street legal. They are:

1. Products that are edible and contain cannabis. These can present as an assortment of various food products;
2. Products that are intended to be used on a person’s skin, hair and nails.
3. A third category of products known as “topicals” which are processed in a different manner than the above two. They are also known as “cannabis extracts”.

These new products will likely be available for retail or online purchase as early as December of this year.

The impact of these new products will be, as usual, another issue to be reconciled in the world of employment law. There will be quite a few “enforcement” issues as it will be impossible for an employer to distinguish a bran muffin containing THC from one which is a plain old bran muffin. Unlike the smoking or vaping of cannabis products, it simply is not visually apparent if an employee is consuming an edible item containing cannabis. Also, unlike the typical smoked product, it may well be the case that the employee may not be aware that the bran muffin they enjoyed for lunch is heavily laced with THC.

In addition, the physical impact of consumable THC products is generally delayed and when the THC hits, it may often be more intense than with other forms of intake.

Employer Policy Manual

The do’s and don’ts of marijuana use at work will, in all likelihood, be governed by the company’s policy manual. It may well be that this manual has already contemplated this new era of consumable products. The sole exception to the expected prohibition of cannabis in the workplace will be medical use when authorized by a medical practitioner. This exception will remain in place. One might expect that the company will insist on the use of only smoking or vaping the products due to the obvious concerns of monitoring the usage in the workplace. This would likely be upheld by a human rights tribunal but at the moment, this is speculation. Given the inherent difficulties in supervising the consumption and chemical composition of cannabis edibles, it is a good guess that this will be the case.

Where there is no manual, it will be the wild west. Clearly a worker should not be consuming cannabis at work, absent the medical exception. It is expected that a judge would see cause for dismissal even without an explicit manual prohibition. The issue of “I thought it was a normal bran muffin” might well be a defence as usually, a just cause issue requires intent or carelessness. Again, this remains to be seen by court decisions on this topic which most assuredly will follow soon.

Drug Testing

One would expect that the employer’s inability to decipher exactly what it is in the bran muffin will lead to a strong argument to allow for random drug testing, particularly in industries with a higher need for physical safety provisions and caution.

The Law is Dynamic

This issue is a good example of how the law must adjust to changing patterns in society and to new related laws that impact day to day employment issues.

Get Advice and Know Your Rights

This question of cannabis use in the workplace is complex. If you are an employee in this context, it is important to take legal advice to understand your rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.