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In 2018, cannabis use was legalized in Canada, and many US states and other countries have since followed suit. After the announcement, many employers scrambled to get cannabis policies live, most with the general sentiment of "don't use it."
For more casual or creative company environments, cannabis use is a reality. If you've worked at a startup or agency, you may have seen people light up at company parties or retreats. One advertising agency even offered up free joints as a work perk.
We wanted to check in and see how these policies have matured. How is cannabis policy at work really going? Have the "just say no" policies worked? How has the pandemic affected cannabis use at work? And how should we be policy-ing (or policing) this?
First off, it's important to cover some aspects of the history of cannabis before any discussion on how to write policy related to it. Cannabis has a long history of spiritual and medicinal use in many ancient cultures. Across the early 20th century, it was widely classified as a narcotic, rechristened "Marijuana" to play off anti-Mexican and anti-immigrant sentiment, and outlawed in the US and Canada. Since then, hundreds of thousands people have been charged and or incarcerated with cannabis related crimes, a large majority of which have been people of colour. Since legalization in Canada, fewer than 400 people have been pardoned.
Cannabis products have legitimate medical uses, and often are prescribed for pain management, cancer, glaucoma, anxiety, digestive issues, sleep disorders and more. It's not always smoked, but also can be vaped, applied topically, or ingested via oils, edibles, and capsules. It's also important to note that not all cannabis products are psychoactive. The active compounds in cannabis products are THC (the compound that causes intoxication) and/or CBD, which is non psychoactive (read: it's doesn't get you high) and is often used for pain and anxiety management, with no impact on work. Aside from medicinal uses, cannabis is also consumed recreationally. Though stigmatized from criminalization, studies show that the dangers of cannabis consumption are lower than other recreationally used substances, including alcohol.
However, cannabis isn't completely harmless when it comes to the workplace - it's still an intoxicant. So how do cannabis and work mix? And should they ever? The answer is: it depends. We spoke to HR and legal professionals, as well as cannabis users, to get their take on our top questions.
Q: Should work be a zero-tolerance place, when it comes to cannabis?
In the cannabis industry, employee use (or testing) of the products at work is a common practice. "At 420 in the afternoon, we would have employees who would be vaping cannabis for the sake of product testing*" said Eric Hutchinson, an HR Manager who has worked with cannabis related manufacturing companies. "When I came in, the policy stated that people were not allowed to be drinking or using cannabis at work at all. But they're inside of the lab right now, vaping cannabis, for work, during work hours. I had to update that policy to the realities of the situation but was sure to emphasize if people were having issues with substance use, resources were there. I also had to make sure people didn't feel forced or pressured, and that they knew that participating in product testing was completely optional."
In a manufacturing environment or other workplace involving heavy machinery or driving, it's a no go. "I used to deal with cannabis and alcohol use when I worked in manufacturing and people would come onto the line incredibly high or intoxicated on alcohol, which was very much a health and safety issue", says Hutchinson. " It's a completely different story depending on the job and the health and safety factors. Someone who is making designs on their computer is different than someone getting high and operating a forklift. It's all about what's reasonable. And looking out for people, compassion, and what the business needs." According to Emily Siu, a lawyer at employment law firm SpringLaw, "In a more safety-critical workplace (like a factory), the employer’s duty to maintain a safe workplace may outweigh certain rights to privacy that an employee would, in another environment, be entitled to exercise. For instance, an employer may be justified in seeking more information about whether the cannabis use of an employee in a safety-sensitive position will not interfere with their fitness to work, than an employee in a regular work environment."
However, in a more casual workplace oriented towards office or creative work, sometimes even recreational use is normalized. Chris, a designer at a real estate startup, says he regularly uses cannabis not just at work, but to work. "Sometimes using cannabis helps me really focus in and go deep on my creative work, and not get distracted by all the Slack messages, emails and to-do lists". According to Siu, "Given our fairly hot job market right now, in addition to the increasing prevalence of cannabis use, some employers are beginning to soften no tolerance policies on cannabis and alcohol use, especially for office, creative and desk jobs."
*Note that this particular workplace obtained a special license to be able to test cannabis onsite, and was legally doing so. Don't try this at work!
Q: Does the shift to remote work impact cannabis policies? Can employees feel free to smoke up around the clock from their home office?
After a vast switch to remote work, it might be hard to know if your employees are using substances, including cannabis, at all. But does it matter? Legally, when employees are working from home, the home becomes the workspace and, as such, an employee should generally not be exempt from cannabis rules and any other policies that would apply to an office setting. Realistically? Some of them are probably smoking up between zoom chats. But does it really matter?
"In pre-pandemic times, many employers and colleagues had the ability to check for signs of drug (including cannabis) intoxication. With hybrid work models and work-from-home arrangements becoming the new normal, the employer’s ability to detect such signs may be reduced", says Siu. What does that mean? In a post-office era, it's tougher to spot signs that cannabis use might be impacting an employee's work or mental health. The best way to mitigate that? Have clear goals and expectations for the work to be delivered, and a regular cadence of check-ins to see how employees are feeling.
Q: What about medical use?
Cannabis has medical uses and might be prescribed to an employee for a number of reasons. For this reason, you should check in with your benefits provider to ensure prescribed cannabis is covered. If an employee thinks their prescribed cannabis use might impact their job, they should disclose this information to employers, who are then legally obligated to accommodate it, unless it causes undue hardship*. To do this, employers can ask the employee what accommodations they require. Note that you should not (and cannot) ask for information on their diagnosis or other private information. Accommodations might include a revised schedule (to seek treatment) or changing duties, such as moving to a desk job from a more safety-sensitive one. It's also possible that no accommodations are required if the cannabis use doesn't meaningfully impact the employee's role, performance, or safety. In this case, they're free to use the cannabis as required, without any changes to their job.
*Undue hardship meaning it's completely (financially or operationally) not doable, or infringes on other obligations such as the health and safety of others.
Q: What if an employee is or becomes addicted to cannabis?
As with alcohol or any other substance, it's not really up to an employer to decide whether an employee has a dependency issue; it's only when substance use affects job performance that it becomes a workplace matter. If a team member discloses a substance abuse problem, which is a medical issue, it's your duty to accommodate it as an employer. To accommodate, a workplace might consider providing the employee with alternative work, altering the employee’s job duties, providing the employee with an unpaid leave with continuation of benefits, recommend the employee look into employee assistance programs (EAPs) or comparable non-employer-related programs for those employees who have concerns over confidentiality, according to Siu. To keep a pulse (and build trust), managers should regularly check in with all employees to spot any mental health issues and ensure employees feel supported.
Q: Should I really care about casual cannabis use at work, in 2023?
From Siu's legal perspective, employers need to make it clear that having flexibility on responsible cannabis and alcohol use does not make it acceptable for employees to be impaired on the job, no matter what that job is. Employers, even at a casual workplace, should be mindful of the safety and liability issues the use of any substance brings.
Still, it's tough to call out what is and isn't impaired and/or problematic use, especially virtually. As Hutchinson adds, "It's hard to tell if an employee is vaping an e-cigarette or cannabis. That said, in my experience, cannabis never created issues at social events. I'm actually more comfortable with employees using cannabis than alcohol at work gatherings. It never created issues with people showing up late to work, or issues with harassment. Alcohol did, though. Alcohol lowers inhibitions and makes you more comfortable with social consequences. Cannabis makes you want to order a burrito."
Steal me: A Sample Cannabis Policy
Below, you'll find a sample policy for a casual, Ontario-based, knowledge-worker environment with low safety risks. Please note that you should run any and all policies by your employment lawyer. We are not a law firm and this does not constitute legal advice, and regulations and laws do regularly change.
This sample policy focuses specifically on legal substances, and shouldn't apply to how you deal with illegal, impairing substances at work.
COMPANY is committed to providing a safe working environment for all employees, contractors, clients and guests. We created this policy on legal substances to help managers and employees navigate the use and management of legal substances at work.
Employees are not permitted to work while intoxicated by any legal or illegal substance. Intoxication refers to a state or level of substance use that significantly impairs cognitive or physical control and/or function.
Health and Safety
Employees are required to disclose the use of any impairment-causing substances, regardless of dosage level, if they occupy a safety-sensitive role, such as operating heavy machinery or driving, or feel it will otherwise impact health and safety policies at COMPANY.
Celebrations and Events
At COMPANY, we believe that it’s important to celebrate and from time to time you may be invited to attend company events where non-alcoholic beverages, alcoholic beverages, cannabis infused beverages or products, cannabis and/or other substances may be provided. It is important that you use your best judgement and act responsibly. Both during and outside of work hours, you are a representative of COMPANY and are expected to conduct yourself professionally and in a way that makes the company and your team members proud.
If you choose to consume alcohol, cannabis, infused beverages/products, or other infused substances, do not drive and please arrange for safe transportation (or ask someone at COMPANY to assist). If you observe another team member or guest consuming alcohol, cannabis or other substances, please do not allow them to drive and, instead, notify management.
We are aware that the consumption of alcohol & cannabis can lead to unfortunate, uncomfortable and inappropriate situations. We are also aware that many employees for their own personal reasons do not wish to consume alcohol or cannabis. We ask that you don’t pry into others personal choices and that you don’t engage in peer pressure. We also ask that if you have not consumed alcohol or cannabis before, you do not try it for your first time at work or at a work event.
We’re a relaxed environment and occasional responsible, legal cannabis and alcohol consumption plays its part in that. We ask that you watch out for each other, and don't encourage excessive intoxication. Managers especially must watch out for team members. If the presence of alcohol or cannabis becomes problematic in our workplace, and/or if team members are found to be peer pressuring each other into drinking alcohol or consuming cannabis, and/or drinking or consuming cannabis is regularly interfering with productivity, we may revisit our stance and opt to prohibit one or both substances. All illegal substances are prohibited at COMPANY and COMPANY events.
Accommodation for Medical Use
Under the Canadian Human Rights Act, Company name is committed to protecting individuals in the workplace from discrimination on the basis of medical need. If any employee is required to use medical substances that cause impairment while at work (including medical cannabis with THC content), company name will accommodate the employee, to the point of undue hardship, so that they may continue to work.
To receive accommodations for a medical issue:
- The employee should disclose the need to a member of the HR team
- Company name will work with the employee and, if appropriate, the employee’s treating physician or medical provider to devise an individualized treatment and accommodation plan
- Company name will provide accommodation to the point of undue hardship
Team members that have a medical need for cannabis may use as prescribed, but may not share their supply with other team members at work or at work events and may not consume it via smoking inside our building.
Substance Abuse and Dependency
COMPANY acknowledges that substance abuse or dependency is a serious medical issue which is protected and recognized as a disability and considered to be prohibited grounds of discrimination by the Ontario Human Rights Code.
- As with any disability, an employee who discloses they are dealing with a substance abuse disorder or dependency will receive support and accommodation from the company.
- As with any disability, HR will work with you to create a confidential accommodation plan, such as modified duties, or time off to seek treatment.
- Employees with disabilities, including substance abuse disorders or dependencies are not necessarily obliged to disclose the nature of their disability or diagnosis in order to receive accommodations, unless required for health and safety reasons. However, COMPANY would like to make it clear that employees will not be negatively impacted for notifying a member of HR of a substance abuse or dependency issue.