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With the recent legalization of recreational cannabis edibles, there is renewed concern about employee rights to cannabis use, but before employee’s puff-puff-pass in the staff room, they should consider the law.

The below information is intended to assist employees in understanding their rights when it comes to cannabis use in reference to the workplace. Employers should take stock of their policies and ensure that they are up to code.

Do I need to tell my employer if I use recreational cannabis?

While employees are not required to disclose whether they use recreational cannabis, employees should be reminded that while an employer cannot directly regulate its employees’ off-duty activities, the legalization of cannabis does not give employees the right to freely use cannabis in the workplace or to be impaired at work. Employees are expected to be fit for duty and able to perform their work duties in a safe and effective manner.

Disclosure of recreational cannabis use may become relevant if, for example, a workplace incident occurs and there is a resulting investigation, or if an employee wants to consume cannabis at work-related events or activities.

Can I use cannabis at work?

Employers can implement workplace policies preventing alcohol and drug use in the workplace and can also manage safety risks in the workplace by implementing drug policies that encourage or even require employees to proactively disclose drug addictions before breaching the policy.

Can I possess cannabis at work?

Employers may or may not allow employees to possess cannabis at the workplace. In determining policies surrounding cannabis use at work, employers should consider liability associated with having cannabis in the workplace, including liability surrounding the storage of cannabis at work. Where employers choose to prohibit the possession of cannabis at work, policies should be in place to govern how cannabis found at work, in violation of the policy, will be discarded.

Can I use cannabis during my break at work?

Subject to human rights legislation, employers are entitled to restrict employee use of cannabis at work and can also insist that employees refrain from using cannabis in a manner that adversely affects their ability to safely or productively perform their job duties.

Therefore, if the use of cannabis outside of work impacts an employee’s performance of their job duties or an employee’s ability to perform their duties in a safe manner, restriction on the use of cannabis may be appropriate.

Can I use cannabis when I am on call but not working?

Employers may put policies in place requiring an employee who is on call to remain fit for duty and able to report to work during that time. Employers may, alternatively, have policies that do not require the employee to remain fit for work while on call, but which require the employee to disclose they are unfit should they be called in for duty and refuse the work without reprisal.

Employers should be mindful of privacy rights when requiring an employee to disclose if they are unfit for work, which includes considering the extent of the information they collect. If employees have questions about the information their employer is collecting with respect to their use of cannabis, they should seek legal advice.

Should I tell someone if I witness or become aware of someone consuming cannabis during working hours or on company property?

Employers have the right to require employees to tell their employer if they witness or become aware of someone consuming cannabis during working hours or on company property in order to protect the workplace and prevent health and safety hazards. Employers should provide training to employees on how to identify signs of cannabis consumption and impairment and how to respond appropriately.

It is important that employees make themselves aware of their rights with respect to the use of cannabis at work so that they can enforce such rights and avoid any potential disciplinary actions against them. If you have any questions about cannabis in the workplace, or for more information, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com


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