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Issue link: https://digital.canadianlawyermag.com/i/1171384
www.canadianlawyermag.com/inhouse 13 and was subsequently involved in a drug- related accident, they could be terminated. The Supreme Court of Canada upheld an employee's termination based on this policy when the employee was involved in an ac- cident and a subsequent drug test revealed the presence of drugs. Employers should note that the termination was based on non-disclo- sure, not the presence of an addiction. Employers should give due consideration to the disciplinary consequences of any breach of the cannabis policy including the level of enforcement and the level of discipline. Level of tolerance of recreational use A cannabis policy should address the em- ployer's tolerance for recreational marijuana use. Many employers may wish to employ a zero-tolerance policy. If so, the policy should clearly articulate what exactly the employer has zero tolerance for. This could include zero tolerance for employee impairment at work, zero tolerance for having drug metabolites in their system or even zero tolerance for any consumption. This area of policy is likely to evolve, given changes in the ability to test for cannabis impairment, more research on the effect of cannabis consumption, the culture around cannabis consumption and concerns over employee coercion. Other considerations when drafting the recreational use portion of the policy include ensuring the policy is consistent with other policies such as an alcohol consumption policy or a social media policy. Social media and cannabis consumption can pose unique issues. For example, employers may want to consider limiting an employee's social media posts relating to cannabis consumption due to client concerns or even travel concerns given reports of foreign border authorities inquiring about cannabis consumption. Post- ing about cannabis consumption online can easily be obtained by border authorities. Employers may also want to consider in- cluding in a cannabis policy whether employ- ees are permitted to have cannabis or related paraphernalia at the workplace (regardless of consumption). The above considerations should help guide employers in drafting a cannabis policy. Any policy drafted should be periodically revisited to determine if it is effectively being enforced (failing which the policy may not be effectively upheld under litigation) and if any salient changes are required. Bright minds protecting bright ideas since 1893 Ranked as one of Canada's top IP law firms in both Canadian and international surveys of in-house counsel, we understand the business of innovation and the vital role that IP plays in today's competitive, market-driven economy. ridoutmaybee.com TORONTO | OTTAWA | BURLINGTON PATENTS | TRADEMARKS | INDUSTRIAL DESIGNS | COPYRIGHT | IP LITIGATION ntitled-4 1 2019-02-12 10:10 AM Abbas Kassam is a lawyer in Ridout & Maybee LLP's IP Litigation and Cannabis IP practice groups. He works in the firm's Toronto office.