'Tricky' to regulate: Employment lawyer explains complicated rules around workplace and cannabis use
The RCMP recently announced it is relaxing its rule on recreational marijuana use for its members, a move that the National Police Federation (NPF) said brings the federal agency in line with other police force policies across the country.
Formerly Mounties who were front-line officers as well as other safety-sensitive personnel were required to avoid recreational cannabis use four weeks prior to reporting for duty.
The new rule requires that all RCMP personnel must be “fit for duty” when they report, meaning they must be able to carry out their responsibilities and not be impaired by any substances while working.
"Substance use can adversely affect job performance, conduct, the work environment, and the well-being of the user and of others, and can compromise the safety and security of policing services," the policy states.
Recreational cannabis popular with job candidates
In a briefing note prepared for RCMP Commissioner Michael Duheme and obtained by The Canadian Press through the Access to Information Act last year, the NFP advised Duheme that inquiries about the recreational cannabis use policy were one of the most common topics at recruiting sessions.
“I imagine that one of the reasons for this is probably to attract more employment candidates,” said Mathias Link, partner at Fasken in Toronto.
“Think about if you're trying to hire for an RCMP detachment in northern British Columbia, 10 hours from Vancouver, how are you going to get people?”
According to StatsCan’s “Canadian Cannabis Survey 2022”, both women and men increased their recreational cannabis use from 22% to 25% from 2021 to 2022. The percentage of people using cannabis for medical reasons remained steady, with daily use reported as the most common frequency.
Of those who use cannabis for medical reasons, most of them (73%) reported they did not have documentation from a medical professional.
“You don't technically have to disclose to an employer that you use recreational marijuana, it's just that the expectation is that if you do it, you'll use it responsibly so that it won’t leave you impaired when you work,” said Link.
THC screening tests do not prove intoxication from cannabis use
Since intoxication from THC does not present in screening tests the same as alcohol does, it can be tricky for employers to monitor and regulate employees’ use of the drug.
Different individuals have different tolerances of THC, plus, THC can remain in fatty tissue for months after use.
“Marijuana is tricky. It's not like alcohol where, with a breathalyzer, the level of alcohol in your blood coincides with impairment, you're able to demonstrate that,” said Link.
“With marijuana, it's different … you could have someone who is a chronic recreational marijuana user who could be taking marijuana even the day before work, and they might still be able to function, whereas someone who isn't, isn't able to.”
Consequently, TCH tests can’t prove intoxication levels, Link said. They can, however, prove recency of use.
An employer is allowed by law to test employees for drugs and alcohol at work in two distinct instances: after an accident, and if there is “reasonable cause, or reasonable suspicion” of impairment, he said.
Clear workplace policies around drug and alcohol use is crucial
Since the legalization of recreational cannabis in 2018 and recreational cannabis edibles in 2019, it has become more complicated for employers to enforce workplace substance use policies. This is why it is crucial for employers to have clear policies in place, Link said.
“Employers are obligated to provide their employees with a safe workplace under occupational health and safety legislation,” he said.
“That means [employees] must be fit, both physically and cognitively, to work, and they must be able to work safely. And an employer has an obligation to protect other employees from workplace hazards, and a workplace hazard can be an employee who is impaired due to drugs and alcohol.”
The policy should clearly state that employees who are using, or who are even considering using, cannabis for medical reasons must disclose that fact to the employer, so they can take appropriate safety steps, Link explained. Although an employer is not permitted to ask an employee about such use, they can however provide a policy statement that employees are required to sign.
“In a workplace drug and alcohol policy – whether it's medical, marijuana, whatever it is – if you are taking any type of drug that could impair your ability to work safely, you have an obligation to disclose it to the employer, who will then talk to you about it, and make inquiries and determine whether or not it impacts your ability to work.”
