The legalization of cannabis in Canada is a highly topical topic, but the laws on this subject and their application – that is, what will be allowed and what will not be allowed – are still a little uncertain.
Will it be possible to smoke marijuana at work? Will the employer be able to require its employees to be tested?
In this article, Me Lambert sheds light on this situation.
Workplace Policies
It will be up to employers to manage marijuana use in the workplace. However, the Government of Quebec will specify their obligations and those of employees in order to protect the safety of all.
Discussions around this topic indicate that legislation and policies in businesses will treat cannabis use in the workplace in some aspects similarly to alcohol and tobacco in other aspects.
For example, although the consumption of alcohol is not illegal (except, of course, for minors), it is not allowed at work. It will probably be the same for cannabis. Similarly, tobacco is not an illegal product, but the law contains several restrictions on where smoking can be done.
Measures to ensure safety at work
According to article 2087 of the Civil Code of Québec, employers have the obligation to take the necessary measures to ensure the health and safety of their employees.
Since cannabis can impair the faculties of people who use it, in some cases it can be considered a breach of worker safety .
For example, if you operate heavy machinery and your reflexes are affected, you could endanger your life and that of your colleagues.
Prohibition by the nature of the employment
For similar reasons, the use of cannabis in the workplace will also be prohibited to those engaged in occupations related to public health and safety, such as police officers, doctors, drivers and pilots.
Restrictions will also apply to professionals, who must stop practising their profession if their state of health – including drug dependence – prevents them from performing their duties.
Indeed, article 54 of the Professional Code stipulates that:
Every professional must refrain from practising his profession or performing certain professional acts to the extent that his state of health prevents it.
Prohibition under the workplace
A special case is home child care. The government is proposing to allow the possession of 150 grams of cannabis kept under lock and key in homes where such services exist.
On the other hand, in primary and secondary schools, daycares and early childhood centres, possession will not be allowed. In addition, the prohibition on possessing cannabis also applies to prisons.
Screening tests
If the employer prohibits the use of cannabis in the workplace, how can they ensure that employees comply with this policy? Let’s look at the different problems related to screening tests.
First of all, these tests are only allowed when the employee gives his or her free and informed consent. So if your employer threatens to fire you if you don’t agree to take a test, and you end up agreeing to do so, your consent was not free, because you were under pressure from your employer.
Without the free and informed consent of the employee, testing can only be done in very specific circumstances. This is the case, for example, of an employee who was off work due to a drug use problem and returns to work. Testing may also be for high-risk positions (police officers, pilots, etc.), or when the employer has serious, reasonable and probable grounds to suspect that an employee is a drug addict or is using drugs at work.
In addition, even when testing is permitted, it can be difficult to know when consumption took place. Indeed, traces of marijuana can be found from several days (for an occasional cannabis user) to several weeks (for a regular user) after consumption. This means that one can think that a person was under the influence of cannabis at work (which would be prohibited), while he consumed it in a party with friends (which would be allowed).
The use of cannabis for medical purposes
Suppose an employer prohibits the use of marijuana at work. However, one of his employees demonstrates that he uses marijuana for medical purposes and that he has a licence from Health Canada. The employee is therefore discriminated against under the Charter of Human Rights and Freedoms and the employer has a reasonable duty to accommodate.
This means that the employer must take steps to accommodate the employee’s needs, but that these measures must be reasonable and must not cause undue hardship.
For example, the employer may allow the employee to keep a small amount in his possession in a drawer of his desk and consume it according to the doctor’s orders. On the other hand, he does not have to let his employee bring large quantities, leave them visible, and smoke cannabis in the office in front of everyone.
In addition, the protection afforded by the Charter does not apply, for example, to certain professions for which the use of drugs is prohibited because of the risk it may pose to the public. This is the case for pilots, for example.
Keep an eye out for news about cannabis legalization and don’t hesitate to consult with your employer if you need an explanation of your company’s policies.
Did you like this article? Follow our Facebook page so you don’t miss our weekly vignettes on various legal topics!
