Canada: The Legalization Of Recreational Marijuana Doesn't Translate Into A Free-For-All In The Workplace

Last Updated: October 23 2018
Article by Monty Verlint and Rhonda B. Levy

This article was first published in HR Professional Magazine.

Bill C-45, the Cannabis Act (the Act), came into force on Oct. 17, 2018, creating a legal framework for the recreational use of marijuana.

Although it may seem that this will create a new set of complex issues for employers to manage, there already exists prior experience and past practices managing the use of alcohol and illegal drugs in the workplace, and prescription drugs that could cause impairment while working.

The legalization of recreational marijuana does not provide employees with a right to use marijuana in the workplace. Both now and after the Act is in force, employers have the right to establish policies pertaining to the use and possession of marijuana at work, which is similar to their right to do so with respect to the use of alcohol and illegal drugs. This is particularly important when the workplace environment is safety-sensitive, as employers must meet their obligations under applicable occupational health and safety legislation to protect the health and safety of their workers and the public.

As many employers will already have existing drug and alcohol policies in place, the legalization of recreational marijuana will require employers to update these policies. If an employer does not yet have an existing policy, it would be a good idea to create one. A comprehensive drug and alcohol policy is an important means of establishing what is and is not acceptable with regard to marijuana use and possession in the workplace.

New and updated drug and alcohol policies may be zero-tolerance, forbidding the use and possession of marijuana at work and forbidding employees from attending work while impaired, but subject to the obligation to accommodate employees with substance addictions and disabilities. A policy may provide details about the disciplinary process to be followed if an employee is suspected of acting in breach of the policy and establish grounds for termination. It may also require employees to proactively disclose issues regarding drug or alcohol abuse, dependency and addiction for the purposes of health and safety, accommodation and treatment.

Should an employee fail to make such disclosure, but then do so only after an incident that requires discipline, the policy could specify that the employer may discipline the employee for breaching the disclosure requirement of the policy. However, an employer may not discipline or terminate the employee simply because the employee may have an actual or perceived addiction, as an addiction is a disability under human rights legislation and such an action would be a human rights violation.

As stated above, the implementation of a zero-tolerance policy does not free the employer from the obligation under human rights legislation to accommodate disabled employees who have been prescribed medical marijuana – or employees who are addicted to marijuana – to the point of undue hardship. Employers are entitled to seek appropriate medical documentation regarding the precise restrictions and recommended accommodation, but not the diagnosis or medical condition. However, a prescription from a physician for medical marijuana – or a marijuana addiction – does not give an employee the right to be impaired at work when the employee's impairment could put the employee's health and safety at risk or threaten that of their co-workers or the general public. In such safety-sensitive circumstances, an employer has the right to ask the employee not to report to work in an impaired state. In addition, employees are still forbidden from smoking marijuana in the workplace in violation of anti-smoking laws, whether or not they have a prescription for medical marijuana.

Employers should train their supervisors and managers on their policies regarding marijuana possession and usage in the workplace, including identifying the signs of marijuana usage and how to address an employee using marijuana. Existing and new employees should be provided comprehensive training about their employer's policies by supervisors and managers who have been thoroughly educated about their responsibilities. Employees should also be asked to sign new or updated policies to acknowledge that they have been advised of them and understand them.

Unfortunately, definitive testing of impairment from the use of marijuana is not currently available, but it is possible to assess the level of THC (the primary psychoactive chemical in cannabis) in an employee's body. In other words, current testing methods cannot determine whether a person is actually impaired at the time of testing and the case law has recognized this. According to Health Canada, cannabis-induced impairment may persist for 24 hours, but there are differing views on this.

Unlike in the U.S., pre-employment testing is generally not permitted in Canada except in limited circumstances. However, there appears to be a trend in favour of the implementation of random drug and alcohol testing for employees who are in safety-sensitive positions for health and safety reasons, although a general problem of drugs in the workplace is generally required. Post-incident and reasonable-cause testing may be more easily implemented, depending on the nature of the workplace and positions held.

Once an employer has determined that an employee has breached its policies, the next step is to proceed with the disciplinary consequences for breach, as outlined in the policy. In some cases, for example, after a history of carefully documented progressive discipline or upon breach of a last-chance agreement, termination of employment for just cause may be appropriately considered. By establishing such a history prior to termination, the employer may be freed from a requirement to provide notice or payment in lieu thereof. As disciplining or terminating an employee due to suspected marijuana use in the workplace can be a legally complex matter, particularly in this new landscape, employers should consider seeking guidance from experienced legal counsel before proceeding.

The legalization of recreational marijuana will undoubtedly create a new set of legal developments in the future, both by the legislature and by the courts. We look forward to monitoring the legal evolution of drug use and testing in the Canadian workplace as the story unfolds.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Davies Ward Phillips & Vineberg
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Davies Ward Phillips & Vineberg
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions