Skip to content

Federal Government’s Cannabis Report: What does it mean for employers?

Rick Dunlop

On December 13, 2016, the Government of Canada released A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation (“Report”). The Report’s primary focus was not workplace safety – a little over one page (pages 28-29) of the 106-page report was dedicated to that.

The Report’s discussion of the issues associated with determining cannabis impairment is, however, of interest to those employers who have, or are considering implementing, a workplace drug testing policy.

Workplace Safety Recommendations

The Report’s Workplace Safety section recognizes the dangers of an impaired employee, particularly those in safety-sensitive industries. Despite noting that “employer groups called for more guidance from federal, provincial and territorial governments about appropriate workplace drug use and drug testing policies…”, the Report did not recommend such legislative guidance.

The Report noted a lack of research to “reliably determine when individuals are impaired” and that the “ability to determine impairment with cannabis … is not as advanced as our ability to measure the relationship between consumption and impairment with alcohol…” The Report said that if “new evidence on cannabis impairment merit changes in workplace safety policies,” the federal governments should work closely with the provincial governments to “consider and respond to the implications of this evidence.”

The Workplace Safety Recommendations called for ongoing research on cannabis and impairment and for governmental, employer and labour representatives to work together to facilitate the development of workplace impairment policies.

Impairment

Employers will likely be most interested in the discussion of impairment in the Report’s Impaired Driving section.

From an employer’s perspective, the Report makes the following positive conclusions:

  • “It is clear that cannabis impairs psychomotor skills and judgment”.
  • “…there is a link between cannabis use and decreased driving performance and increased crash risk”.
  • per se limit for THC (i.e., “a level deemed to be consistent with significant psychomotor impairment and increased risk of crash involvement”) “would simplify enforcement and adjudication by eliminating the need to prove, on a case-by-case basis, that a driver was impaired…” Although the Report refers to per se limit for THC blood levels (as opposed to oral or urine levels, which are the common bodily fluids tested in a workplace drug testing policy), the Report’s recognition of a clearly defined standard is positive.
  • “…oral fluid screening devices are the most advanced today (and have the added advantage of signaling recent use)…”
  • “there is currently no evidence to suggest there is an amount of THC that can be consumed such that it remains safe to drive…”

However employers should be aware of the challenges that the Report notes in determining cannabis impairment which employees and unions may use to challenge drug testing. They include:

  • “cannabis-impaired driving is more complex to study than alcohol-impaired driving;”
  • although there is scientific agreement that “THC impairs driving performance, the level of THC in bodily fluids cannot be used to reliably indicate the degree of impairment or crash risk”;
  • unlike alcohol “THC can remain in the brain and body of chronic, heavy users of cannabis for prolonged periods of time (sometimes several days or weeks), far beyond the period of acute impairment, potentially contributing to a level of chronic impairment…”
  • “Some heavy, regular users of cannabis, including those who use cannabis for medical purposes, may not show any obvious signs of impairment even with significant THC concentrations in their blood. Conversely, infrequent users with the same or lower THC concentrations may demonstrate more significant impairment.”
  • “Other challenges exist, including the need to account for the rapid and sharp decline of THC levels in the blood in the hours following consumption through smoking (with edibles the decline is more gradual).”

Significance

Any employer concerns regarding the Report’s suggestion that there is a need for further scientific evidence to determine a per se limit must be considered in the following context:

  1. The Report overwhelmingly reinforces the inherent dangers of cannabis impairment in the workplace and when operating a motorized vehicle.
  2. The Report emphasizes the importance of a clearly defined standard of impairment so as to avoid adjudication. This is particularly important in the employment context given that it would be untenable to have an undefined standard.
  3. Given the significant penal consequences that result from an impaired driving conviction and the higher standard of proof (beyond a reasonable doubt) under the Criminal Code of Canada, a per se limit is more important in the criminal law context. Such legal considerations are not generally present in the context of a violation of a workplace drug testing policy.
  4. One of the leading workplace drug testing decisions, Imperial Oil(2006), a decision that was affirmed by the Ontario Court of Appeal and was most recently endorsed by the Supreme Court of Canada in Irving Pulp and Paper found that oral fluid testing did disclose cannabis impairment: “The drug test is by means of a buccal swab which is used to identify only impairment by the use of cannabis, utilizing the cutoff point of 10 nanograms per millilitre of blood. It is not contested that the results of the oral fluid drug tests do disclose impairment by the use of cannabinoids.”
SHARE

Archive

Search Archive


 
 

Client Update: The Employer’s implied contractual obligation to supply work: common law developments in employment law

March 10, 2015

Following several Supreme Court of Canada decisions in the late 1990s and early 2000s, the law of constructive dismissal was well defined – or so many thought. The Court’s decision in Potter v. New Brunswick Legal…

Read More

Client Update: Auto Insurance – Direct compensation for property damage is coming to PEI

March 5, 2015

In our May 20, 2014 client update, we reported on significant changes affecting automobile insurance in Prince Edward Island, including changes to no-fault benefits available under section B and changes to the damages cap for minor…

Read More

Labour and Employment Legislative Update 2014

February 10, 2015

2014 LABOUR AND EMPLOYMENT ATLANTIC CANADA LEGISLATIVE UPDATE As we move forward in 2015, we know our region’s employers will want to be aware of new legislation that has passed or could soon pass that…

Read More

Client Update: 2015 Minor Injury Cap

January 30, 2015

On January 28, 2015, the Office of the Superintendent of Insurance issued a bulletin in Nova Scotia. The 2015 minor injury cap has been set at $8,352, an increase of 1.7 per cent over 2014.…

Read More

Client Update: Outlook for the 2015 Proxy Season

January 29, 2015

In preparing for the 2015 proxy season, you should be aware of some regulatory changes that may impact disclosure to and interactions with your shareholders. This update highlights what is new in the 2015 proxy…

Read More

Client Update: Reaching New Limits – Recent Amendments to the PEI Lands Protection Act

January 6, 2015

During the Fall 2014 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Lands Protection Act. The amendments have just been proclaimed and were effective January 1, 2015.…

Read More

Atlantic Employers’ Counsel – Fall 2014

December 17, 2014

The Editor’s Corner Clarence Bennett This issue focuses on the family and the interaction between employment and family obligations. As 2014 comes to a close, I would like to extend Seasons Greetings to all of…

Read More

Client Update: Recent Developments: Disability Insurance Policies

December 17, 2014

RECENT DEVELOPMENTS: DISABILITY INSURANCE POLICIES & LIMITATION PERIODS IN NOVA SCOTIA Two recent Nova Scotia decisions have clarified the issue of limitation periods in disability insurance policies and “rolling” limitation periods.   THORNTON V. RBC…

Read More

Client Update: Changes to Related Party Election (Section 156 – Excise Tax Act)

December 16, 2014

Section 156 of the Excise Tax Act (the “ETA“) provides an election that relieves certain related parties from having to collect Harmonized Sales Tax (“HST“) on the goods and services sold between them. The election deems qualifying…

Read More

Doing Business in Atlantic Canada (Fall 2014) (Canadian Lawyer Magazine Supplement)

November 20, 2014

IN THIS ISSUE: More Than Wind – Emergence of Tidal Energy in Atlantic Canada by Sadira Jan Aquaculture and Salmon Farming in Atlantic Canada by Greg Harding The Expanding Atlantic Canada Offshore Industry: Growing Offshore without Going Offside by Stephen Penney and Rebecca…

Read More

Search Archive


Scroll To Top