In April 2017, the federal government introduced legislation to legalize and regulate recreational cannabis in Canada by July 2018. Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (“Cannabis Act”) is making its way through the Parliamentary process. Once the Cannabis Act comes into force, Canadians will be able to access marijuana for recreational use – not just for medicinal purposes.
Anticipating the passage of Bill C-45, the Ontario government introduced Bill 174, Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 which was given Royal Assent on December 12, 2017. Not surprisingly, the legalization of the recreational use of marijuana has employers concerned. It is important to note that Under Bill 174 no person is permitted to consume marijuana in a workplace within the meaning of the Occupational Health and Safety Act, any public place or in a motorized vehicle. The OHSA defines a workplace “any land, premises, location or thing at, upon, in or near which a worker works.”
That being said, a medical cannabis user may consume cannabis for medical purposes in any of these places subject to any prohibitions or restrictions set out in the regulations or under the Smoke-Free Ontario Act, 2017. Medical cannabis users are not be allowed under the legislation to smoke or vape medical cannabis in enclosed workplaces, enclosed public places, motor vehicles and other smoke-free places, with a few exceptions. According to Health Canada, as of March 31, 2017 there were 167,754 people registered to use marijuana for medical purposes. This is up from 53,649 on March 31, 2017.
The issue of impairment is a live one and a challenging one as there are no reliable tests for measuring impairment from marijuana. Employers, in the case of medical marijuana, have a duty to accommodate to the point of undue hardship under the Human Rights Code. Health and safety considerations are relevant in this analysis as relates to cannabis in the workplace.
A recent article entitled Canadian companies fret about hazy rules around legal pot use outlines some of the employer concerns. The Human Resources Professional Association has also published a helpful pamphlet Clearing the Haze – The Impacts of Marijuana in the Workplace as has the Canadian Centre for Occupational Health and Safety in a White paper Workplace Strategies: Risk of Impairment from Cannabis.