Cannabis bans in the workplace will be hard to implement

Published: March 25, 2018

Updated: July 24, 2018

Author: Luke Jones

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The Cannabis Act will be passed into law this summer, allowing all Canadians the legal right to use marijuana recreationally. How police and governments will manage impaired drivers under the act is a hot topic, but increasingly there are concerns also surrounding the use of cannabis in the workplace.

An expert lawyers speaking at the Ontario Mutual Insurance Association (OMIA) last week warned it will be hard to completely ban marijuana from the workplace.

“Both bills [related to The Cannabis Act, Bills C-45 and C-46] are actually silent when it comes to employment and occupational safety,” said Sandra Gogal, practice leader at Miller Thomson LLP. “At present, there is no Canadian law that regulates mandatory drug testing of employees, so when the recreational market opens up, it creates a number of interesting issues.”

Employers will face challenge issuing complete cannabis bans in the workplace because of the differentiators between recreational and medicinal forms of cannabis. Unlike the soon-to-be-introduced recreational law, medicinal cannabis use has been legal in Canada since 1999.

“I had a call from a company the other day that said one of their employees was injured on the job, and as a matter of standard practice, they get drug-tested,” Gogal recounted. “The results came back positive, and they said, ‘Can we fire him?’ And I just said, ‘We don’t know yet whether that was for medical purposes or not.’”

The cannabis plant is known to host active chemical ingredients called Cannabinoids, with over 100 so far observed. For the most part science has focused on two Cannabinoids, delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD).

THC is a substance that causes the psychoactive effects of marijuana, which allows drug users to get high. CBD is used for medicinal purposes because it lacks most of the psychoactive effects found in THC. Of course, the differences between these Cannabinoids are easy to detect under science, but for employers it will be more of a challenge “because I don’t think any of us are really chemists,” Gogal said. “There are over 100 cannabinoids and each of them has a different effect on your body.”