Here are questions tourism employers frequently ask about Cannabis in the workplace:
1. Can I ask my employees to sign an agreement saying that they won’t use cannabis at work or come to work impaired?
In most cases, it is not necessary for employees to sign an agreement regarding substance use. It will usually be sufficient for an employer to prepare a drug and alcohol policy (or a fitness for work policy) that outlines its rules and expectations, and communicate that policy to employees. It’s a good practice to have employees sign a copy of the policy, indicating that they have read and understood it. In exceptional circumstances (e.g. where an employee has been disciplined for substance use before and is now receiving a “last chance”; where an employer’s operations are safety sensitive), an agreement between employer and employee with specific content relating to substance use may be appropriate.
2. Can employers test for cannabis use at work?
In most circumstances, no. While testing may be appropriate in a safety-sensitive workplace as part of a comprehensive and well-planned policy, it will be difficult to justify in a non-safety-sensitive workplace. Appropriate responses, if the employer suspects an employee has reported to work while impaired or may be abusing drugs or alcohol, may include immediate removal from the workplace (with safe transportation home), referral to counselling or an employee assistance program, a mandatory medical assessment, and/or, in some cases, the imposition of appropriate discipline. For more information on drug and alcohol testing, please see our companion article here.
3. My employees serve alcohol at a bar or restaurant. Can I prohibit them from using alcohol or cannabis while they are at work? What if they stay for a drink after their shift ends?
Yes, employees who serve alcohol can be prohibited from using alcohol or cannabis while they are at work. This rule should be clearly articulated and communicated to employees before an issue arises. Employees should also be advised that if they have a legitimate medical requirement to use cannabis, or if they believe they may have a drug or alcohol addiction or dependency, they must disclose this to the employer before an incident or problem occurs.
After their shift ends, employees would be subject to the same rules that apply to other guests at the bar or restaurant. Smoking cannabis is prohibited in indoor public places and workplaces as well as outdoor decks and seating areas (among other locations) by the BC Cannabis Control and Licensing Act. In some cases, employees might still be covered by employment policies even after their shift ends, if a connection to employment can be demonstrated.
4. How long must employees abstain from cannabis use before coming to work?
It depends. Employers have the right to set the rules for the workplace, subject to applicable laws. Employers also have a legal obligation to ensure the health and safety of their workers and others who are present at the workplace. Employers may prohibit the use of non-medical cannabis at work or during working hours and may also prohibit employees from attending work while impaired. While some employers in safety-sensitive industries have banned the use of cannabis for a certain number of hours before an employee’s shift begins, this approach remains controversial. Employers can require employees to refrain from using cannabis in any manner that adversely affects their ability to safely and effectively perform their jobs.
One of the difficulties with this question is that there is presently no consensus on the duration of all impairing effects of cannabis. As this develops, employers may have a greater ability to impose specific timelines on the time from last use to reporting for work.
5. Is there really such a thing as a cannabis addiction that I would have to accommodate?
Yes. The law recognizes cannabis as an addictive substance that can lead to physical dependency and addiction. If an employee requests accommodation for cannabis addiction, this should be treated as any other request for accommodation of an addiction disability. This does not necessarily mean that an employer would have to accommodate the use of cannabis in the workplace for the addicted employee. One option, for example, may be for the employee to take a temporary leave of absence to seek treatment for the addiction.
6. Can I prohibit employees from smoking cannabis in open-air environments such as ski hills and golf courses?
Yes. With the possible exception of legitimately prescribed medical cannabis, employers may still prohibit the use of cannabis for employees while they are at work or performing work for the employer. Even where an employee requires the use of cannabis for medical reasons, the employer is entitled to request that the employee and his or her physician consider alternative treatments (for example, the use of medical cannabis in an edible or other form, or at different times of day when the employee is not working, or the use of a different treatment altogether). Employers may also consider general bans on smoking that would prohibit both tobacco as well as cannabis.
7. We serve alcohol at our holiday party. Do we have to allow cannabis now too?
No. Employers may still prohibit the use of cannabis at holiday parties and other staff social events, even where responsible use of alcohol is permitted. Given the potential for extreme impairment where cannabis is consumed in conjunction with alcohol, it is highly advisable to ban cannabis use at staff functions where alcohol is being served. The rule should be communicated to employees before the event takes place. It is always a good practice for employers to offer safe transportation home (e.g. taxi vouchers) where employees may be leaving a work-related event after having consumed alcohol.
8. Can an employee complain if a guest is smoking cannabis and the employee perceives it as unsafe?
Yes. In British Columbia, under the Occupational Health and Safety Regulation of the Workers Compensation Act, an employee may refuse to carry out work where he or she has “reasonable cause” to believe that it will affect the health and safety of the employee or any other person. An employee who has a medical condition making them sensitive to cannabis smoke may also request accommodation if the condition constitutes a disability. Employers should advise employees before an issue arises of what they are to do if a guest is smoking cannabis – for example, politely ask the guest to refrain from smoking or advise the guest that smoking (cannabis or tobacco) is not permitted. Many employers implement policies that prohibit smoking for guests in addition to applicable policies for employees.
In locations where guests are permitted under the BC Cannabis Control and Licensing Act to smoke cannabis, employers may still implement policies that prohibit smoking for guests in addition to applicable policies for employees. Where such policies are in place, employers should advise employees before an issue arises of what they are to do if a guest is smoking cannabis – for example, politely ask the guest to refrain from smoking or advise the guest that smoking is not permitted.
If the guest is permitted under the Act to smoke cannabis, and the employer’s own policies do not prohibit it, the employer may still have to take action in response to an employee’s complaint. Where an employee requests an accommodation due to a sensitivity to cannabis smoke, the employer is entitled to ask for sufficient medical information to consider the request. If the condition constitutes a disability, the employer will have a duty to accommodate to the point of undue hardship. Where an employee refuses to work in an area with cannabis smoke because he or she believes it is unsafe, the employer is required to investigate the matter and either correct the situation if possible or report back to the employee. If the situation cannot be resolved between the employer and employee, an officer from WorkSafeBC may be called to investigate.
9. I operate a remote or backcountry lodge. Employees may remain there for several months without leaving. Some employees will be “on-call” at times for possible first aid or emergency measures. Can I prohibit cannabis (and alcohol) for employees at the lodge?
Yes. Employers should implement a clear policy and communicate it to employees before they begin work at the lodge. The policy should include a clear statement of what the expectations are of employees and what conduct or behaviour is prohibited (e.g. consumption, possession, distribution, impairment) and inform employees of possible consequences of a breach of the policy (e.g. investigation, discipline, possible termination of employment). The policy should also include a statement that provides for the accommodation of disability to the point of undue hardship. Have employees sign a copy of the policy to acknowledge having read and understood its contents, and make sure you take steps to consistently enforce it.
10. We have staff housing for our employees. Can I prohibit employees from using cannabis in the staff housing?
It depends. If the housing is provided as a rental unit under the Residential Tenancy Act, then a “no smoking” policy that existed before the legalization of cannabis is deemed to prohibit the smoking of cannabis in the same manner that it already prohibited the smoking of tobacco. New tenancy agreements will require an express term to prohibit cannabis smoking. If staff housing is provided within a building that already has a policy in place that prohibits smoking cannabis (for example, a hotel room), the employee would be subject to that policy. In either circumstance, an employer would have a duty to accommodate an employee who has a legitimate medical requirement for cannabis, to the point of undue hardship. Employers generally cannot prohibit cannabis use where the housing is owned or operated by a third party (rather than by the employer) and the use during off-duty hours is not expected to affect the employee’s duties at work.
11. What about possession of cannabis? Can employers prohibit employee possession of cannabis on their premises?
Yes. While the BC Cannabis Control and Licensing Act permits persons age 19 years or older to carry up to 30 grams of dried cannabis (or its equivalent) anywhere in a public place, an employer can establish a policy on its premises that prohibits possession of cannabis for both employees and guests. The policy should include a statement that provides for the accommodation of disability to the point of undue hardship. As a practical matter, employers may find that such a policy is difficult to enforce. While an employer may prohibit possession of cannabis for employees only, and permit possession for guests, the employer should consider carefully the business reasons for doing so and seek legal advice on the potential impact.
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This article is based on information provided by Mathews Dinsdale & Clark LLP. The information is necessarily of a general nature and must not be regarded as legal advice.