Oh Cannabis

Legalization took place on the 17th of October, so here are 17 things you should know about cannabis:

  1. The possession and consumption of recreational cannabis is now legal in Canada, subject to certain restrictions.
  2. The possession limit in British Columbia is 30 grams (that may not sound like a lot until you ask Google how many grams are in a joint and realize a person can now walk around with 90 joints in their backpack).
  3. Cannabis has not been decriminalized. Under the Cannabis Act it is still a criminal offence to, among other things, possess more than the 30 gram possession limit, and to distribute cannabis to someone under the age of 18.
  4. Edibles, lotions, and bath bombs (yes, they exist) are not legal yet. It is an offence under the Cannabis Act to produce, sell, and even possess cannabis that is “illicit cannabis”.
  5. It is only legal to possess dried cannabis, cannabis oil, fresh cannabis, cannabis plants, and cannabis seeds. The expectation is edibles and other forms of use will be legalized in the 12 months to follow.
  6. When we last checked, cannabis contains 483 known chemical compounds, and of those chemical compounds, approximately 110 are classified as cannabinoids. Cannabinoids are a class of chemical compounds the cannabis plant naturally produces. The most famous cannabinoid is the main psychoactive component of cannabis – tetrahydrocannabinol or THC. THC gets you high. It impairs.
  7. Another cannabinoid gaining notoriety is cannabidiol or CBD. Although CBD is not known to cause impairment, claims that a strain of cannabis is high in CBD does not mean it is non-impairing. Take a tour of a licensed medical cannabis producer’s website and you will find that the vast majority of strains of cannabis offered for sale (for medical use) are in excess of 5% THC. For reference, the average THC content of cannabis seized by police in the 1980’s was 3%. We are pretty sure cannabis used in the 1980’s was getting people high, so don’t accept an employee’s explanation that they aren’t getting impaired without making some inquiries.
  8.  That cannabis advertised as being low in THC and high in CBD probably isn’t. A recent study by researchers at UBC Okanagan found that despite producer claims of varying concentrations, THC amounts were almost identical in most cannabis strains.
  9. THC and CBD aren’t the only cannabinoids of interest. Cannabigerol or CBG, along with cannabichromene or CBC, are showing promise in medical applications. Expect to hear more from these two.
  10. Cannabis is impairing. Yes, even medical cannabis. As set out in the Final Report of the Task Force on Cannabis Legalization and Regulation: there is “currently no evidence to suggest there is an amount of THC that can be consumed such that it remains safe to drive” and there is “insufficient evidence presented to identify a safe potency limit”.
  11. Legalization of cannabis does not create a right for employees to consume cannabis at work or at a time such that they are impaired during their working hours. Employees don’t have a right to get drunk and go to work, or to get drunk on their lunch break. The same goes for cannabis.
  12. Just because you have a holiday party where you allow employees to consume alcohol doesn’t mean you have to allow them to consume cannabis.
  13. When an employee uses cannabis, it could be they are using it recreationally, medicinally, or pursuant to a substance use disorder. The latter two trigger human rights obligations; recreational use does not. If an employee is engaging in the recreational use of cannabis at a time that could cause them to be impaired at work, they are engaging in culpable misconduct and may be disciplined.
  14. Employers can impose a duty on employees to disclose if they need to use medication that could cause them to be impaired at work, or if they have a substance use disorder. If an employee is then impaired at work, an employer may be justified in disciplining the employee for their failure to disclose, despite the presence of a disability. It would be best to seek legal advice before doing so, however.
  15. The Access to Cannabis for Medical Purposes Regulation – the regulation that legalized the medicinal use of cannabis – remains in force. It has strict requirements for cannabis prescriptions. Employers should educate themselves on those requirements and on their duty to accommodate, because the medical use of cannabis is not slowing down. As of March 31, 2015, there were approximately 18,000 licensed medical cannabis users. These are the people with the valid medical documents under the Regulation. By March 31, 2016, that number was 53,000, on March 31, 2017 it was 167,000, and on March 31, 2018 it was approximately 297,000. If you haven’t dealt with this issue yet, you probably will soon.
  16. The duty to accommodate does not mean an employer has to allow an employee to be impaired in the workplace. It means an employer has to consider the individual circumstances in the context of the workplace to determine whether the employee’s use of cannabis can be accommodated to the point of undue hardship.
  17. To be clear, nothing has changed. It wasn’t okay for your employees to attend work impaired prior to legalization, and it isn’t okay for them to attend work impaired now.

For questions relating to this article, please contact Brad N. Cocke.

This article was written by Brad Cocke, Harris & Company LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Harris & Company LLP, please visit harrisco.com.