On June 1, 2022, the Government of Canada announced that it was granting B.C. a limited-time exemption to decriminalize certain drugs for personal use. This comes almost four years after the federal government legalized cannabis.
This article will take a closer look at the details of the exemption and what it means for your workplace.
What is it?
The exemption is granted under the Controlled Drugs and Substances Act. Importantly, it does not legalize the substances in question. The substances will remain illegal, but people in possession of the substances will not be arrested, charged or have their drugs seized if they have 2.5 grams or less of the substance in their possession for personal use.
Which substances will be decriminalized?
Specific opioids, cocaine, methamphetamine and MDMA will be decriminalized under the exemption. People will be permitted to carry a cumulative maximum of 2.5 grams of these substances for personal use.
When will it apply?
The exemption is currently set to be in effect starting January 31, 2023, until January 31, 2026, unless it is replaced or revoked sooner.
Where does it apply?
The exemption is only in B.C. and notably will not apply in certain locations, including on kindergarten to Grade 12 school premises, in child-care facilities, in airports or in motor vehicles operated by minors.
How will the exemption impact the workplace?
Just as before, employers can continue to expect and require employees to attend work fit for duty and not impaired by drugs or alcohol.
Do I need to update my policies?
Employers with drug and alcohol policies should review those policies and consider whether they require updating to ensure that they can be relied upon when disciplining employees. This is particularly the case for employers with safety-sensitive work environments or in workplaces where the substances will continue to be prohibited (such as schools). Employers can still prohibit employees from bringing these drugs into the workplace, even if they are decriminalized.
Can I implement drug testing?
Employers are required to balance the privacy rights of the employee with legitimate workplace concerns when requiring a drug test.
Drug testing is generally permitted only in narrow circumstances:
•at the time of hiring if the employee is hired into a safety-sensitive position;
•if there are reasonable grounds to believe an employee is impaired;
•post-incident, if the employee is involved in a significant incident and the employee’s state of mind is a reasonable line of inquiry; and
•when the employee returns to work after a positive test or after self-disclosing substance use. These circumstances are not expected to change.
A pitfall of drug testing is that it generally indicates the presence of the substance rather definitive impairment from the substance. This may be a good opportunity to review signs of impairment with supervisors, human resources personnel and occupational health and safety committee members, and ensure that all workplace personnel, including staff, are familiar with the policy.
Are there any human rights considerations I need to be aware of?
Employers have a duty to inquire in cases where they suspect an employee may have a disability related to drug and/or alcohol use. This duty is unchanged by the exemption. However, it highlights the importance of employers paying attention to employees who may have a substance-use disorder. With the decriminalization of these substances, there may be more open discussion of drugs in the workplace, which could trigger an employer’s duty to inquire.
Related to this duty is the employer’s duty to accommodate, which is also unchanged by the exemption. Employers will continue to be required to consider the ability accommodate employees with disabilities, which includes drug and alcohol addiction and substance use disorders.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern. The article is for general information purposes only and does not constitute legal advice. •
Janna Crown is an associate at Roper Greyell LLP. She practises in all areas of workplace law with a focus on human rights, labour law and WorkSafeBC matters.
