Cannabis in the workplace: Sorting through the weeds
With the recent legalization of cannabis on October 17, 2018, employers have been scrambling to understand their liability in light of potential cannabis use by their employees in the workplace. Given the increased likelihood of recreational cannabis use as a result of the legalization, it is important that employers, both large and small, take steps to establish comprehensive company policies to better manage the related risks and impacts. At Watson Goepel LLP we help employers understand the implications of cannabis legalization to protect the safety of both the employees and the business itself.
Managing Safety and Risk
For many employers, workplace safety is a top priority. While the federal Cannabis Act permits the recreational use of cannabis, provincial legislation sets out various restrictions on cannabis. In British Columbia, the following restrictions are included:
(a) use is prohibited in certain places (schools, parks, pools, etc.);
(b) growing plants is subject to various restrictions (e.g., not visible from adjoining properties); and,
(c) smoking/vaping is prohibited in certain contexts (6m from a window or door).
The general rule in British Columbia is that persons with control over an environment, such as a restaurant owner or an employer, are legally responsible for any contravention of provincial cannabis laws and regulations, as provided in Section 68 of the Cannabis Control and Licensing Act, SBC 2018, c 29 (the “Act”) [emphasis added]:
(2) If a person smokes or vapes cannabis in contravention of section 64 (1) (a) or (c) [enclosed public places] or within a prescribed distance from a doorway, window or air intake of a place to which section 64 (1) (a) or (c) applies in contravention of section 64 (3) [doorways and windows], the owner, manager and lessee of the place are each deemed to have contravened section 64 (1) (a) or (c) or (3), as the case may be, and are each liable for the contravention.
(3) If a person smokes or vapes cannabis in contravention of section 64 (1) (b) [enclosed workspaces] or within a prescribed distance from a doorway, window or air intake of a place to which section 64 (1) (b) applies in contravention of section 64 (3) [doorways and windows], the employer is deemed to have contravened section 64 (1) (b) or (3), as the case may be, and is liable for the contravention.
The Act clearly imposes vicarious liability on employers to ensure compliance with smoking and vaping of cannabis. Vicarious liability is a legal term referring to a situation where someone is held responsible for the actions or omissions of another person. For example, in the general workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.
In the context of cannabis use, a general defence to vicarious liability imposed by the Act is available to employers who take reasonable steps to prevent the contravention, as set out in Section 68(5) of the Act. What those reasonable steps are will vary from context to context, but having a workplace policy in place regarding cannabis use can likely assist in supporting such a defence.
It should be noted that unlike other forms of liability imposed on corporations, the Act is effectively permitted to “pierce the corporate veil” by assigning liability to directors, officers and agents of an employer in certain contexts. Excerpts from sections 94 and 111 of the Act provide as follows:
94 (1) If the director determines, based on information obtained through an inspection or from any other source, that a person has contravened section 15 [sale of cannabis] or 18 [production of cannabis], the director may impose a monetary penalty on the person.
. . .
(9) If a corporation is liable to a monetary penalty imposed under this section, an officer, director or agent of the corporation who authorizes, allows or acquiesces in the contravention is also liable to the penalty.
111 If a corporation commits an offence under this Act, an officer, director or agent of the corporation who authorizes, allows or acquiesces in the commission of the offence also commits an offence, whether or not the corporation is prosecuted for the offence.
The risk of legal liability on the directors, officers or agents of the employer is a strong incentive to ensure your workplace has protective policies in place for cannabis use.
How do I know if I am compliant with the Act?
Employers can help ensure their compliance with the Act by:
- drafting a comprehensive workplace policy on cannabis use and alerting your employees to it; and,
- posting a notice near doorways regarding smoking/vaping cannabis and cigarettes within the legal boundaries.
At Watson Goepel LLP, our experienced team of business and employment lawyers have been actively advising clients both prior to, and after cannabis legalization, to address their concerns for potential vicarious liability under the Act. We focus on the key areas of concern to mitigate the risks to your business.
Liam Oster is a lawyer in the Business Group at Watson Goepel LLP with expertise in Cannabis law. He advises clients both large and small on the impacts of legalization, and helps navigate the complexities of evolving cannabis regulations across multiple jurisdictions.