**This blog was originally published in March 2018. Some of the information in the blog is out-of-date, specifically the legalities of consuming pot in the workplace.
As the date when cannabis becomes legal draws closer, many questions remain unanswered. Where exactly will people go to buy weed? Will residents be allowed to smoke up in their condo? And will there be enough pot to go around?
Despite the somewhat hazy picture, the rules around cannabis in the workplace are becoming increasingly clear. The challenge for employers is ensuring their workplace policies – and approach to managing staff – match the law.
Jim Anstey, a lawyer in Nelligan O’Brien Payne LLP’s employment law group, is one of the firm’s experts who’s been studying what this unprecedented legislation means for employers.
He recommends that businesses and organizations take certain precautions to ensure their expectations around recreational cannabis are clear ahead of legalization later this year.
Cannabis in the workplace
The federal Cannabis Act will decriminalize the recreational use of marijuana. But it’s the provinces and territories that are crafting many of the rules around the consumption of cannabis.
Ontario has drafted legislation that regulates the sale, possession, cultivation and use of the drug.
So, can you bring pot brownies to a staff party?
The answer from the province is a resounding no – Ontario’s Cannabis Act is explicit in saying “no person shall consume cannabis in a workplace.”
And merely moving a worksanctioned staff party from the lunchroom to an offsite location won’t skirt the rules.
In this context, the definition for a workplace is taken directly from the province’s Occupational Health and Safety Act – “any land, premises, location or thing at, upon, in or near which a worker works.”
As Anstey explains, it’s important to understand this definition, especially in an age where people are increasingly working remotely, whether from home, a coffee shop or a co-working space.
An important item for Ontario residents to remember is that the prohibition on use doesn’t solely apply to your own workplace. Ontarians cannot consume cannabis in any location where it may be anyone’s place of work.
For those who work from home, this potentially raises a unique situation.
In Ontario, individuals will only be allowed to use the drug in a private residence. But when you invite others into your home to work – whether as freelancers, contractors or otherwise – it becomes their workplace.
How to prepare
While Ontario has ultimately taken a stance to prohibit cannabis in the workplace, Anstey advises that employers should still take steps to explicitly define expectations around the drug.
Is it OK for staff to stash a joint in their desk drawer for after work? Is it OK to have a few puffs at lunchtime?
To be defensible, organizations must clearly outline expectations around cannabis in their employment contracts and workplace policies. This means employers must be clear if they’re prohibiting the use and possession of cannabis at work.
It also means employees must have the opportunity to read and agree to these restrictions. Employers cannot simply tack a cannabis section or clause on to an existing contract.
Anstey recommends the following:
- Ensure you have a policy in place;
- If you already have one, take the time to review your workplace policy and update it as needed;
- Evaluate your organization’s expectations around cannabis use, especially as they pertain to consequences for ignoring the policy;
- Give employees a chance to review and sign on to the new or updated policy.
As an employment lawyer, Anstey cautions against overzealous employers trying to police their employees too heavily. While it remains to be seen how decriminalization will play out, he sees a parallel between cannabis and how employers treat alcohol and illicit substances in the workplace.
Often, Anstey finds himself advising his clients to exercise restraint when it comes to handling suspicions of drug use at work.
“It’s important to step back and look at all the facts before you go ahead and fire or insult someone” by accusing them of being drunk or stoned, explains Anstey.
Ill-thought disciplinary actions can bring trouble for employers, who can face claims of constructive dismissal and defamation. Anstey often reminds his clients that their employees have a right to privacy.
Conversely, however, it’s important for employees to respect the ban on use at work.
“You can’t expect employers to tolerate impairment in the workplace,” says Anstey.
What can Nelligan O’Brien Payne do for you?
Worried about reefer madness in your office? Not sure where to start in updating your employment contracts? The best way to prepare your organization for the decriminalization of cannabis is to sit down with an employment lawyer and review your workplace policies. Learn more at nelligan.ca. You can reach Jim Anstey at jim.anstey@nelliganlaw.ca or 613-231-8348.
