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Ask Aliya: How Canada’s Legalization of Marijuana Impacts Employee Policies

“Ask Aliya” is a column for lawyers who are the first legal hire at their company and need advice from an in-house lawyer who has been there before. Aliya Ramji is the director of legal and business strategy for Figure 1 Inc., a network used by more than 1 million healthcare professionals to share cases and collaborate. To have your legal questions for startups answered, email [email protected] with "Ask Aliya" in the subject line.

Dear Aliya,

I work for a startup in Canada and I am responsible for helping craft our employee conduct policy. Obviously, employees shouldn’t consume alcohol or drugs before coming to work but if they do, it can be more difficult to tell if someone is under the influence of a drug like cannabis compared to the more commonly known effects of alcohol. How do you recommend I proceed?

Brian

Dear Brian,

One of the foundational principles of your workplace code of conduct should be employee safety. Canadian employers are required by law to ensure a safe workplace. Cannabis is already the most commonly encountered substance in workplace drug testing, and its use is expected to grow exponentially after legalization. Therefore, it is a good time for everyone to start updating their employee conduct policies.

In my study of several employee conduct policies, I’ve found that the common thread is an understanding that working under the influence of any substance may negatively affect job performance and pose serious safety concerns. Most workplaces have a zero-tolerance policy for the possession, use, distribution, or sale of any illegal drugs. The general consensus is that alcohol and/or drug abuse is not condoned while employees are conducting business. That said, many companies allow their employees to conduct business over drinks. As you know, drinks carts and beer fridges are not unusual at law firms or startups. Employers believe that if you treat employees as adults, they will act accordingly.

You may consider two different approaches to your own workplace alcohol and drug policy: a zero-tolerance policy or establishing a per se limit.

The first approach, the “zero-tolerance” policy, indicates that no level of consumption is considered safe. This may be the most effective approach, especially in a workplace where an employee is required to use items such as vehicles, machinery, construction equipment, or chemical substances to perform their duties. However, a zero tolerance policy could be discriminatory against employees who use cannabis to treat or relieve the symptoms of a disability. You wouldn’t enforce a zero-tolerance policy for employees who use prescription drugs, which can have similar side effects to drugs and alcohol. Therefore, you may run into a human rights issue with a zero-tolerance cannabis policy.

The second approach, establishing a “per se” limit on acceptable cannabis levels in the blood is considered to be the most equitable. The difficulty here is how an employer measures this. As you point out, it’s more difficult to identify cannabis ingestion and drug testing is a contentious issue in Canada right now.

If the per se method is preferred, your company should enact a clear drug policy that includes the definition of “impairment” in a way that captures medical marijuana use and when/where it is acceptable. Policies on drug use must define what it means to be impaired and provide details on how the policy applies to both recreational and medical drug use. If an employee can discuss business over drinks, then with the legalization of cannabis, it is not out of the realm of possibility that business may be conducted over cannabis cookies. In your policies, identify when and if drug use at work is appropriate. Moreover, any prescription drug policies should be enforced in a uniform manner to ensure that medical marijuana is treated equally with other prescriptions.

As mentioned, drug testing in Canada is contentious and cannabis use will be difficult to detect. However, this is no different than challenges that have been presented by high functioning alcoholics in the past. Once you decide on your policy, enforcing the policy will be the more challenging piece. Until clear detection methods are established and a per se limit can be identified, it will be up to your management team to make sure all of your employees are safe in the workplace.  

Based on the newness of the legislation, my final recommendation is that you stay apprised of developments and legislative updates in this area and continue to revise your policies accordingly.

Good luck and I applaud you for getting ahead of the issue!

Aliya

About the Author

Aliya RamjiAliya Ramji is the director of legal and business strategy for Figure 1 Inc. She also was a 2016 recipient of ACC’s Top 10 30-Somethings.


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