Going to Pot: An update on employers and marijuana issues in the workplace.

• Author: McPhail, Hugh

November 2, 2018

October 17th was the date chosen by the federal government to make a profound change for Canadian society. Possession of cannabis became legal. In this article, we offer some answers to questions that many employers are probably thinking about.

1. Are all cannabis products a concern for employers?

   No. Cannabis includes many chemicals. THC is the troubling one because it has an impairing effect and that effect continues even after a period of abstinence. CBD is another chemical in cannabis and there are some products which contain high concentrations of CBD and virtually no THC. There is some evidence to support medical benefits from the use of CBD products. It seems to be accepted by medical authorities that CBD is not impairing. Many physician authorizations have been for the use of CBD products with negligible amounts of THC.

2. Will legalization spell the end of the "medical marijuana" authorization scheme?

   Not yet. The Canadian Medical Association is in favour of bringing it to an end but some physicians want to preserve the authorization scheme. There are no plans to end it just yet.

3. Come October 17th, will I be unable to ask employees about their cannabis use?

   It may be an invasion of privacy to compel employees to answer questions about their cannabis use unless there is a reason to know. There is probably a reason to know if they are employed in a safety sensitive position but employees in other positions are probably entitled to refuse to answer.

4. Will legalization mean that I cannot refuse to hire someone because they admit using cannabis products containing significant amounts of THC or if they test positive for THC?

   In general, an employer can hire whom they want to unless it will mean breaking a specific law. The most relevant law here is the Alberta Human Rights Act which prohibits discrimination on the basis of disability. Addiction to cannabis products would be a disability. Casual use is not. Some individuals might also have a specific physical or mental disability of some kind where their physician recommends and authorizes a cannabis product for treatment purposes. If the individual fits one of these two categories, then the law might prevent you from refusing to hire them. You would have to show that it would be undue hardship for you to take the risk. There is a human rights duty to accommodate any disability to the point of undue hardship.

5. But what if they are working in a safety sensitive position?

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