Recreational cannabis is now legal in Canada and, with that in mind, Québec has enacted An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions (the "Act"), which offers tools for employers to use for regulating cannabis use in the workplace.
For example, in addition to prohibiting smoking cannabis in an enclosed workplace, the Act provides: "Under their managerial prerogative, employers may regulate, including prohibit, any form of cannabis use by members of their personnel in a workplace within the meaning of the Act respecting occupational health and safety (chapter S-2.1 [hereinafter the "OHSA"]), unless it is already prohibited there under this chapter." In other words, this provision allows employers to justify drafting or updating a cannabis policy. Employers are therefore entitled to impose more stringent restrictions on cannabis use, which may ultimately take the form of a zero tolerance policy. Employers that adopt policies of this type may take administrative or disciplinary action against employees who violate it, which could result in the termination of employment.
Did you know that the Act also makes changes to employees' and employers' general obligations under sections 49 and 51 of the Act respecting occupational health and safety? The OHSA now provides:
49.1. A worker must not perform his work if his condition represents a risk to his health, safety or physical well-being or that of other persons at or near the workplace by reason, in particular, of his being impaired by alcohol, drugs, including cannabis, or any similar substance.
On a construction site, the condition of a worker who is impaired by alcohol, drugs, including cannabis, or any similar substance, represents a risk for the purposes of the first paragraph.
The OHSA also states, regarding employers' obligations:
51.2. The employer must see to it that a worker does not perform his work if his condition represents a risk to his health, safety or physical well-being or that of other persons at or near the workplace by reason, in particular, of his being impaired by alcohol, drugs, including cannabis, or any similar substance.
On a construction site, the condition of a worker who is impaired by alcohol, drugs, including cannabis, or any similar substance, represents a risk for the purposes of the first paragraph.
Employers that violate the obligation imposed on them by section 51.2 of the OHSA are therefore now liable to prosecution. In view of this specific new obligation, we recommend that our clients, particularly those whose employees work in workplaces presenting risks, train their supervisors and first responders to recognize the objective signs that suggest that their workers exhibit signs of impairment. Note that the other forms of cannabis use (oils, edible cannabis, derivative products, etc.) and regulation of those forms in the workplace may present delicate issues. Employers will have to exercise care in order not to violate their employees' fundamental rights when they determine whether an employee is using or has used a cannabis derivative.
We therefore recommend that employers train their managers and personnel so they are able to detect the effects of any form of cannabis use on employees' conduct. When an employer has reasonable grounds to believe that an employee is impaired, the employer may, for example, ask that the employee undergo a drug test.
Employers will also have to be vigilant, given the possibility of substance dependence, or where it is prescribed by a healthcare professional as part of a specific treatment. In fact, employers could have to meet further obligations, including a requirement to offer reasonable accommodations in accordance with Quebec's Charter of human rights and freedoms.
A number of questions remain unanswered, in particular concerning the reliability of drug tests in view of the various methods of using cannabis. As was the case for alcohol a few decades ago, rulings by the courts will clearly be needed in order to clarify certain concepts that are still ambiguous.
In light of the foregoing, we are of the opinion that employers must immediately adopt and implement a cannabis policy, not only to fulfil their obligations under the CNESST and make the workplace safe, but also for reasons of reputation.
For further information on cannabis legalization and its effect on the workplace, we refer you to the guide entitled Comment s'adapter à la légalisation du cannabis dans les milieux de travail (available in French only) produced by the Ordre des conseillers en ressources humaines agréés, the principal author of which is Charles Wagner, a member of our team.
