Ready or not, recreational cannabis will become legal in Canada on Wednesday, Oct. 17.
To help employers prepare for the legalization of cannabis, there are a number of resources available online, such as The Canadian Centre for Occupational Health and Safety (CCOHS) whitepaper, Workplace Strategies: Risk of Impairment from Cannabis, which provides guidance on addressing impairment as part of a hazard assessment, establishing an impairment policy and program, and implementing accommodation practices.
The Government of Canada has published a web page concerning cannabis impairment that includes information about workplace impairment and the duty to accommodate.
WorkSafeBC has also produced Workplace impairment: A primer on preparing for cannabis legalization that summarizes the regulatory requirements related to workplace impairment and how employers can develop policies and procedures that address workplace impairment.
The common message throughout is that employers need to review their workplace safety policies concerning impairment, adjust them if needed, and ensure that all employees are trained on the policy and understand their rights and responsibilities under the policy.
The question many may be asking is how does cannabis legalization complicate current workplace impairment rules, or do the exact same rules apply that are currently in use?
Workplace impairment has been regulated for sometime, and WorkSafe BC is indicating that the legalization of cannabis will not require it to amend the current regulations. Under Section 116 (2)(d) of the Workers Compensation Act, a worker is required to “ensure that the worker’s ability to work without risk to his or her health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes.”
As for what form enforcement will take, should someone be found using cannabis on the job, there is no definitive answer because it depends on a number of things, including an employer’s impairment policy, whether the use is medicinal, as well as the employer’s duty to accommodate. It’s something that employers will need to assess on a case-by-case basis.
The WorkSafe BC regulation does not specifically require policies that incorporate impairment testing. Employers who wish to implement impairment testing, such as those whose workplaces include high-risk activities, should get advice from an employment lawyer about how to balance workplace safety, human rights, and privacy issues before implementing a program.
For specific questions and issues, employers are encouraged to seek legal advice to ensure their policies and enforcement are reasonable.