The legalization of recreational (i.e., non-medical) marijuana in Canada finally has some clarity—and a date. Effective October 17, 2018, the possession and use of recreational marijuana will be legal across Canada.
To prepare for the legalization of recreational marijuana, Canadian employers should introduce or update workplace policies that address the potential implications of recreational marijuana in the workplace, including possession, use, impairment and accommodation for dependency.
Among the many challenges faced by employers in crafting and implementing such policies, the assessment of impairment poses one of the most difficult. The level of THC (the primary psychoactive component of marijuana) present in a person’s body does not necessarily correspond with the person’s level of impairment, as each person will react to and metabolize marijuana differently. Until recently, there was no clear consensus on the per se limit for what constitutes marijuana impairment.
However, on June 21, 2018, Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, received Royal Assent, which introduced new drug-impaired driving laws. Bill C-46 authorized the Governor in Council to establish blood drug concentration limits for the purpose of measuring “impairment” in the operation of a motor vehicle or vessel (the “Blood Drug Concentration Regulations”). The Blood Drug Concentration Regulations established, for the first time, per se blood drug concentration limits for THC of 2ng/ml of blood (summary offence) and 5ng/ml of blood (hybrid offence).
Employers have no obligation to adopt the blood drug concentration limits in the Blood Drug Concentration Regulations into their workplace policies. Indeed, despite the impending legalization of recreational marijuana, employees do not have an absolute right to use marijuana in the workplace at all. However, for employers looking to include a definition of marijuana “impairment” in their workplace policy, the Blood Drug Concentration Regulations may help serve as an objective and authoritative standard for such a definition.
With the legalization date looming, employers should act now to implement the appropriate polices to ensure that employees are aware of the continued expectation to attend at work in appropriate mental and physical condition and to remain fit for duty at all times. For questions regarding the assessment of marijuana “impairment”, or for support in drafting a workplace policy that addresses the implications of recreational marijuana in the workplace more generally, please contact a member of the Employment Law Group at DLA Piper (Canada) LLP.