The Cannabis Act, or Bill C-45, the new federal legislation, gives employers the ability to ask job applicants to disclose their cannabis use in the past three years. This is an improvement over the previous rules, which required job applicants to disclose their status as an “un-admitted user” or a “prohibited user”. However, cannabis is not the only drug that employers are concerned about. With new laws being enforced in almost every province, employers are also asking job applicants to disclose their use of other drugs such as opiates, cocaine, and heroin.
If you work in a cannabis-related industry, you have been following the debate over the legal status of CBD (cannabidiol) in the United States and Canada. After recreational marijuana was legalized in Canada on October 17, 2018, companies are now permitted to possess CBD and other cannabis derivatives. However, employers have been tasked with controlling cannabis consumption on their premises. If you are a cannabis user, how are you supposed to behave at work?
To date, recreational marijuana for personal use is legal in Connecticut. Your employees may think this means they are free to use marijuana at work. You would be wrong. Indeed, the new law gives employers significant powers to ban marijuana use in the workplace and to punish marijuana use outside the workplace. The new law also includes additional restrictions on smoking and vaping (of tobacco and cannabis) in the workplace.
The fact that the law regulating the use of cannabis in the workplace only came into force on 1 January 2009 adds to the confusion for employers and employees. This means that employers can still follow the rules that were in place before legalization. For example, employers can ban all cannabis use by employees (except for medical reasons) and test for cannabis until 1. July 2022 to ban all cannabis use by employees (except for medical reasons) and test for cannabis. As explained below, after 1. Slightly different rules will apply in July 2022, but the practical effect is that employers can still regulate the recreational use of cannabis. However, the regulation on smoking in the workplace will not enter into force until 1 January. October 2021, employers should not hesitate to review their policies and procedures.
In this post, we’re going to talk about the rules that are coming into effect and what you can do right now to maintain the integrity of your workplace.
Cannabis use in the workplace
First, the Act establishes two sets of rules depending on whether an employer or a particular job/function is considered exempt from regulation. Exempt are employers primarily engaged in mining, utilities, construction, manufacturing, transportation or delivery, education (schools), health or welfare, law enforcement, public order and safety, national security, and international affairs. All positions with exempt employers are excluded from coverage. Exempt positions include firefighters, EMTs, police officers, DOC officers who have direct contact with inmates, positions for which federal or state laws require a driving test, and positions requiring a CDL, etc.
Valid from 1. July 2022:
- ALL employers can prohibit the possession or use of recreational marijuana at work. Employers are not required to provide facilities for the recreational use of marijuana, but must allow possession of marijuana for medical purposes to an eligible patient.
- ALL employers may penalize employees for possession, use and consumption of recreational marijuana outside the workplace, provided the employer has a written policy and it has been communicated to employees.
- Non-exempt employers/functions : Employers cannot fire or take adverse action against an employee or potential employee just because he or she used marijuana outside the workplace before being hired.
- Non-exempt employers/employees : An employer may take adverse action against an employee who tests positive for marijuana if the test was conducted based on reasonable suspicion of intoxication, as part of a fitness for work requirement, or on a random basis if the employer is required by law or has a policy to do so.
- Exempt employers (or exempt entities in the case of non-exempt employers) : Employers may refuse to work or take disciplinary action for possession, use or consumption of marijuana on or off the job, including prior to employment, or solely on the basis of a positive marijuana test, with or without an existing policy.
Finally, employers can still take disciplinary action over the recreational use of marijuana. The main difference for employers and exempt positions is that exempt employers are not required to have a written policy.
In any case, we believe that all employers should have a clear policy setting out the rules that employees must follow regarding the use of drugs, alcohol and tobacco.
Provisions of the Clean Air Act
The legal cannabis law also includes stricter restrictions on smoking and vaping in the workplace, hidden among some of the more egregious provisions of the law. These restrictions shall enter into force on 1 January 2011. October 2021 in effect. Here are the key points:
- Employers must prohibit smoking and the use of e-cigarettes containing tobacco and cannabis in all areas of the workplace. (Previously, employers with five or more employees could provide a smoking area.)
- Employers must prohibit smoking, both inside and outside the workplace, within 25 feet of a door, open window or vent. This has implications for where employees can take smoke breaks.
- Employers can ban smoking completely in business premises. Previously, employers could simply ban it from their premises.
- Several exemptions apply, including facilities exempted under the Indoor Air Quality Act.
Employers
Given the confusion over what the law allows and when it will take effect, employers can set clear boundaries for their employees now:
- Inform your employees of the effective date of the law and what it entails.
- Remind employees of existing policies or rules prohibiting the use of drugs or alcohol in the workplace – including recreational marijuana – and the disciplinary consequences of violating those policies or rules.
- Develop or update your policies related to the legalization of recreational marijuana as soon as possible, including addressing (i) recreational marijuana use in the physical workplace, (ii) recreational marijuana use in the remote workplace, (iii) recreational marijuana use outside the workplace, and (iv) employee drug testing.
We hope this article will help you untangle some of the confusing provisions of the new marijuana law regarding employers. We will continue our analysis of this bill and release the latest information as it becomes available.
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