Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E / J U L Y 2 0 1 8 47 n May, Prime Minister Justin Trudeau insisted that recreational cannabis use was still on track to be legalized this summer, and his government had promised that the legislation would be enacted eight to 12 weeks following an affirmative Senate vote. Across the country, labour and employment lawyers have expressed reservations that the provinces would have time to set up their systems for selling recreational marijuana for the projected date of July 1. But no matter how long it will take to set up a gov- ernment-controlled system for selling the drug, the legalization of recrea- tional marijuana use will present some new challenges for employers — and if employee policies haven't been updated to reflect that the once-illegal drug will soon be legal, now is the time to do it. Lorenzo Lisi, a partner at Aird & Berlis LLP in Toronto, says Ontario is "not even close to being ready" to sell cannabis in stores, even though the province had anticipated that 40 bricks- and-mortar cannabis stores would be open for business by July. More import- ant, from a workplace perspective, is that marijuana will "no longer be an illegal drug." However, says Lisi, "The real issue becomes what do we do in workplaces where we suspect impairment?" And how is impairment detected? Impairment and detection "I think one of the biggest challenges for employers is being able to spot impair- ment" from marijuana and then knowing how to respond to such impairment, says Drew Demerse, a partner at Roper Greyell LLP in Vancouver. Employers don't have access to a "breathalyzer" equivalent for marijuana and its psychoactive compon- ent, tetrahydrocannabinol, or THC, says Demerse, and consumption can also be inconspicuous. "The stereotypical person smoking on a sidewalk in a cloud of smoke isn't always the way marijuana is consumed," he says, and cannabis can also be consumed in brownies and candies. Alexandra Meunier, an associate at Fasken Martineau DuMoulin LLP in Montreal, agrees it is more difficult to detect impairment from marijuana. "Alco- hol consumption, regardless of someone's personal . . . tolerance, shows," she says, adding that consumption of THC may have more differing effects depending on the individual. An odour of cannabis and bloodshot eyes may be clues to cannabis consumption, "but they may vary from individual to individual." The type of testing for alcohol con- sumption is not available for marijuana consumption, notes Damian Rigolo of Osler Hoskin & Harcourt LLP in Cal- L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T NATHAN HACKETT Marijuana and the workplace What challenges will the impending legalization bring for employers? By Elizabeth Raymer I the workplace issue

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