Williams HR Law LLP


October 16, 2019

[vc_row][vc_column width=”1/4″][vc_single_image image=”4305″ img_size=”large”][/vc_column][vc_column width=”3/4″][vc_column_text]As most Ontario employers know, new regulations regarding cannabis edibles and concentrates come into effect tomorrow, October 17, 2019, on the one-year anniversary of the legalization of recreational use of certain forms of cannabis across Canada.

Specifically, cannabis products that became legal last year include fresh and dried flower, seeds, plants, and oils. Cannabis edibles and concentrates (e.g., hashish) remained illegal to buy or sell.

In June 2019, Health Canada announced the regulatory framework around cannabis edibles and concentrates which are expected to be available for purchase in mid-December 2019 at the earliest. Although these new classes of cannabis products are legal as of October 17, 2019, the regulatory framework requires that licensed producers submit proposed products for approval 60 days before they can be distributed to ensure that the products comply with a variety of restrictions, such as that they cannot include alcohol or nicotine, or come in shapes, forms, colours, or flavours that appeal to children. Therefore, these new products cannot hit the shelves—literal or virtual—until at least December 16, 2019.

As with the legalization of certain recreational cannabis products in October 2018, employers should be mindful of the potential impact that the legalization of these new classes of products may have on the workplace. While the legalization of edibles and concentrates is unlikely to require significant changes in how employers have been managing recreational cannabis so far, there are some nuances that employers should carefully consider.

Nuances to Consider

As always, employers should be proactive about setting out expectations regarding recreational cannabis use and impairment. In particular, employers should consider the slight ways in which the new product classes may be different from what is already legally available to employees.

For example, edibles often have higher concentrations of tetrahydrocannabinol (THC), take longer to cause intoxication, and result in longer-lasting intoxication. As a result, there is the chance that an employee may take too much, thinking that the initial dose is insufficient, which can lead to high levels of intoxication that only begin some time after the employee has consumed the product. Further, intoxication from edibles is not evident through an odour and may occur suddenly at a time when employers would not expect that an employee had had the chance to consume a cannabis product. Employers should ensure that managers are aware of these facts, and are trained to look out for other signs of intoxication, such as blood-shot eyes and behaviour that is out of the norm for the employee.

No Right to Be Intoxicated at Work

One of employers’ primary concerns surrounding the legalization of these new products is similar to the initial concerns when recreational cannabis was legalized—employee impairment in the workplace. However, there is reason to believe that the legalization of these new products will not result in an increase in impaired employees at work.

A recent Statistics Canada survey found that, while the percentage of Canadians who tried or used cannabis increased slightly after legalization of recreational cannabis, the number dropped down to almost pre-legalization levels soon after. As such, employers can likely expect similar behaviour when new classes of cannabis products become available—while some employees may try the new products, it is unlikely that any significant percentage will use the products on a regular basis.

Ultimately, legalization of these new cannabis products is unlikely to have significant effects on the workplace as long as employers are prepared. Employers that apprise themselves of and ensure that managers are trained on the signs of intoxication and impairment that are unique to these newly legalized forms of cannabis use should be able to capably navigate any risks.

Employers that have not already done so should turn their minds to crafting policies that clearly convey expectations with respect to recreational cannabis, and those that have should take this opportunity to reiterate conduct expectations.

You can read more of what we have written about cannabis in the workplace, including some of the key elements of an effective policy, by downloading the Winter 2019 and Spring 2019 editions of our In the Know newsletter, as well as our “Cannabis and the Workplace” bulletin.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice