Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
When Canada’s Cannabis Act and supporting regulations came into force on October 17, 2018, Canada became the first major world economy to establish a legal framework at the federal level for the adult recreational use of cannabis. At the time, this legislation legalized the recreational use of dried and fresh cannabis, but did not legalize the consumption of edible cannabis, or the use of cannabis extracts and cannabis topicals (“cannabis-infused products”). As a result, on June 14, 2019, the Government of Canada announced amendments to the Cannabis Regulations1 that govern the legal production of cannabis-infused products. The objective of these amendments, which came into force on October 17, 2019, is to reduce the unique health risks of these products. Since federal license holders are required to provide 60 days’ notice to Health Canada of their intent to sell new products, cannabis-infused products will not appear in physical or on-line cannabis stores until mid-December 2019.
Workplace Challenges Relating to Edibles
Employers are entitled to establish rules relating to the possession and consumption of edibles in the workplace, just as they are entitled to do so with regard to the consumption of dried and fresh cannabis. However, the legalization of edibles creates the following unique workplace challenges:
- Since edibles exist in products that are also available without cannabis content (e.g., in cookies and candies), it may be difficult to identify edibles and more likely that employees will consume them at work without detection.
- Edibles do not have a smell, making detection of impairment more challenging.
- The duration of impairment following consumption of edibles is generally longer than if cannabis is smoked or vaped. As a result, an employee may become suddenly impaired in the workplace long after having consumed edibles.
- The effects of edible consumption take longer to be felt following consumption than if cannabis is smoked or vaped. Individuals who are unaware of this delay may become impatient and overconsume edibles.
Bottom Line for Employers
The imminent availability of edibles in physical and on-line cannabis stores coupled with the unique challenges described above would suggest that Canadian employers take reasonable steps to update their workplace policies, including as they relate to drugs and alcohol, health and safety, and accommodation.
To deal with issues relating to how edibles impact the human body (e.g., the delay before effects are felt, risks of over-consumption, the long duration of impairment), employers can educate managers, supervisors and employees about these matters. Education sessions should emphasize that consumption of edibles the night before work can impact the employee and the safety of the workplace the following day, and that the employer has an obligation to ensure the workplace is safe for all employees. This is of particular importance in safety-sensitive workplaces. At these education sessions, employers should also consider taking the opportunity to provide a comprehensive review of their updated drug policies, reminding employees of their obligations under the policies.
To deal with issues relating to the detection of impairment from edibles, employers should consider providing detection training to managers and supervisors, and also train them to document signs of impairment to justify testing and disciplinary action, if applicable.
While the legislation of cannabis-infused products does present its challenges, employers can take proper steps to help alleviate potential harm and maintain a productive workforce.
1 Regulations Amending the Cannabis Regulations, SOR/2019-206, available at https://laws-lois.justice.gc.ca/eng/regulations/SOR-2018-144/nifnev.html.