What Canadian employers are telling their staff about legal cannabis

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Now that recreational marijuana is legal in Canada, its citizens are sure to become far more cannabis-literate. Discussion of cannabis consumption already has taken over the airwaves, where etiquette experts are weighing in with tips for dinner parties, and the do’s and dont’s of instagramming gatherings where people are smoking or vaping marijuana. It won’t be long before wide swaths of the populace are able to grasp expert-level nuances, like the difference in pot’s effects according to its varied strains.

But employers aren’t getting into the weeds—in either sense of the term. Because the science isn’t developed enough for any set level of “safe” marijuana to be established, they’re erring on the side of caution, says Mario Torres, an employment lawyer with Brazeau Seller Law in Ottawa.

With drinks, we know what 40% alcohol is, and what four cocktails at lunch will do to your performance, he notes. But we can’t be as confident in our knowledge of cannabis, in large part because prohibition laws have stunted research. The dosing is still imprecise, and the drug’s effect is unpredictable. The level of THC in a product, a person’s experience with marijuana, and the method of consumption all impact the drug’s intensity and the duration of any altered state.

As a result, employers at jobs where safety is a priority have issued highly restrictive guidelines; airlines are mandating that many employees not use recreational cannabis off-duty at all.

For office jobs, the message is that essentially, nothing has changed: You’re expected to show up sharp enough to perform on the job. Unless you have a legitimate prescription for medicinal marijuana, the workplace does not need to accommodate your cannabis habit.

Take this memo from a leading Canadian broadcaster, acquired by Quartz at Work. It tells employees that, “A person does not have a right to be impaired in the workplace.”

An excerpt:

When considering any impact that legalization of cannabis will have at [our company], there are three distinct areas we consider: Impairment, Smoking and Medicinal.

Impairment:  Cannabis, medical or otherwise, will be treated like any drug, alcohol or other intoxicant that can cause mental and/or physical impairment, and can impact your ability to perform your work. A person does not have a right to be impaired in the workplace.

Smoking: [The company] will continue to maintain a smoke-free workplace to ensure the safety and well-being for all people. This includes cannabis, tobacco or any other substance that emits smoke or vapour.

Medicinal:  Similar to any other prescribed treatment from a physician, we will ensure people with a medical cannabis prescription are accommodated in the workplace provided that smoking and/or impairment restrictions are not compromised.

The memo also offers to connect employees with counseling organizations, whether for themselves or for guidance in talking to their kids about cannabis. And then it addresses some pressing questions about using or sharing weed at work. The TL;DR is that marijuana should not figure into your next Secret Santa gift exchange—not at this workplace, anyway. Here are some excerpts from the memo’s FAQ section:

Can I consume recreational cannabis prior to, or while at work?

No. [The company] is responsible for the well-being of all our people in the workplace – intoxication or impairment in the workplace is unacceptable and legalization of recreational cannabis does not change that. Impairment or intoxication is also strictly forbidden while operating any [company] owned motor vehicles.

Recreational cannabis is treated like any other controlled substance, such as alcohol, and the purchase and consumption (in all forms) both publically and privately is regulated by Provincial Legislation and the Cannabis Act.

Can I share or sell cannabis at work?

No. This is inappropriate and would be grounds for discipline or termination.

Can I accept or give gifts of edible cannabis products?

No. Sale of cannabis edible products and concentrates for sale will not become legal in October 2018.  Since they remain illegal products, they are prohibited to give or receive as gifts.

Finally, because so many Canadian jobs require travel to the US, the memo notes that employees are responsible for staying compliant with US immigration laws about both personal use of marijuana and any investments in a cannabis company. “This applies for business travel to other countries as well,” it says.

But let’s say an employee ignores the memo and existing code of conduct guidelines; what’s a manager to do if an employee seems high after a coffee break?

Apologizing for the standard lawyer’s response, Torres explains that there is no single answer. In the end, employment law is contract law, he says, so workplace drug testing, which is generally considered a human rights violation in Canada, would only be possible if employees have already signed an agreement agreeing to it under specific circumstances.

“The employer does have the right to manage their operations as they see fit, and because they see fit to manage the workplace in a safe and healthy manner, they can discipline employees for a breach of contract,” says Torres.

This is about liability, not morality, he says. In some workplaces, rather than have an accident occur because a policy was too lenient, a company would rather have employees take action against an organization to prove that its policy is overly prohibitive, perhaps a violation of a person’s rights and freedoms. Then an outside decision-maker might force management to loosen restrictions.

In an office job, should someone be unable to speak clearly because they’re impaired, or if a supervisor needs to ask, “What’s this weird email you sent me?” Torres says, the situation becomes a management problem, as it would with an employee suspected of drinking. Employers can begin laying the grounds for dismissal.

However, any suspicion of substance abuse might first trigger an employer’s “duty to inquire,” he notes. “I would caution my employers not to walk up to that employee who is sitting there stinking of weed and say, ‘You’re fired’,” says Torres. Instead, the employer may be obligated to start a conversation and offer assistance or time off. If the cannabis habit remains a lingering issue, an employer can dismiss an employee citing undue hardship.

In time, Torres predicts, you’ll see contract negotiations rewriting the rules around cannabis. In fact, it’s already happening.

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