On October 17, 2018 Canada becomes the largest country in the world to decriminalize and regulate the production, distribution, sale, possession and use of cannabis. What do employers need to know?
Medical Cannabis - changes to the legislation do not affect the current legislative scheme governing medical cannabis. These federal regulations - the ACMPR and NCR - provide for Health Canada to license and oversee the commercial medical cannabis industry including allowing individuals to self-produce. These regulations include fresh cannabis, dried cannabis and cannabis oil. However, cannabis is not recognized as a prescription by Health Canada and is not included on the Manitoba Drug Benefits Formulary. As a result, you should review your health benefits plan to determine whether prescriptions for medical cannabis are covered or not.
Legislative Changes - In April 2017 the federal Bill C-45 (the Cannabis Act) was introduced into the House of Commons. The Cannabis Act will come into effect on October 17, 2018 and will allow adults to access and possess regulated, quality controlled legal cannabis in public, up to 30g of dried cannabis or the equivalent in buds or oil. Each province may determine the age of majority and whether adults may use in public and/or self-produce. In Manitoba, the age of use is 19, adults may not use cannabis in public and may not self-produce.
As a result, employers should review existing drug and alcohol policies or implement new ones respecting possession and use of cannabis on employer property or employer time. Consideration should be given to employer sponsored events and a broad definition of workplace to include those who work from home, travel from home to work and those employees who travel for work.
Other Considerations - The Cannabis Act prohibits the sale of cannabis to those under the age of use determined by each province. There are strict regulations regarding advertising and promotional sponsorship.
Provincial Regulation - the Province of Manitoba recently passed The Safe and Responsible Retailing of Cannabis Act which creates the Liquor, Gaming and Cannabis Authority ("LGCA"). The LGCA authorizes and regulates the retail sale of cannabis in Manitoba. Cannabis may only be sold by a person with a retail license, which license allows the holder to sell cannabis both online and at approved locations. Stores may only sell cannabis grown by a federally authorized producer. Cannabis must be packaged and labelled in accordance with federal regulations.
Impact on the Workplace - Employers continue to be entitled to expect employees to attend work sober and not impaired by any drug (cannabis, illegal, prescribed, over the counter) or by alcohol. Employers should implement fitness for work policies whereby employees who may be prescribed or taking any substance that impairs must declare this so that appropriate accommodations can be put in place. There is no duty to accommodate recreational drug or alcohol use, including hangover effect.
What does this all mean? Mystery surrounds cannabis including impairment and how to measure same. THC, the component of cannabis that provides users with the "high" feeling, can be stored in the body's fatty tissues for a significant period of time - 4 to 6 weeks - and can be randomly expelled by the body. For instance, a person can test negative after using cannabis, and then test positive days later. This is the mystery. As always, employers should be observant of their employees' behaviour and when in doubt, seek legal advice.