Health Canada granted an exemption from the Controlled Drugs and Substances Act to the Province of BC, effective between January 31, 2023 to January 31, 2026. Under this exemption, adults (18 years and older) in BC are not going to be arrested or charged for possessing small amounts (up to combined total of 2.5 grams) of certain illegal drugs for personal use.

While this is unlikely to significantly disrupt the status quo respecting drugs and alcohol in the workplace, there are several issues that employers should consider in light of this exemption.

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Overview of Drug Possession Exemption

The illegal drugs covered by the exemption are:

• Opioids (such as heroin, morphine, and fentanyl)

• Crack and powder cocaine

• Methamphetamine (Meth)

• MDMA (Ecstasy)

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This exemption does not apply in the following circumstances, where possession remains illegal:

• On the premises of elementary and secondary schools and licensed child-care facilities

• At airports

• On Canadian Coast Guard vessels and helicopters

• On a motor vehicle or watercraft that is operated by a minor (under 18 year of age), whether or not it is in motion

• Members of the Canadian Armed Forces

• People under the age of 18

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Although possession under this exemption is allowed, illegal drug use continues to be prohibited on private property. This may include places like shopping malls, bars, cafes, and workplaces. Police will continue to retain legal authority to remove people from these premises if open drug use is occurring against the wishes of the owner.

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What about Drugs and the Workplace?

In British Columbia, under the Workers Compensation Act and the Occupational Health and Safety Regulation employers have a duty to ensure a safe and healthy workplace, including protecting employees from undue risk created by impaired workers.

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The regulations specify that employers must take all reasonable steps to protect workers from the hazards associated with drug and alcohol use, including providing information and training to workers, developing and implementing drug and alcohol policies, and taking appropriate action in the event of violations. Drug and alcohol testing may be conducted in certain limited circumstances.

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Despite this newly implemented exemption under the Controlled Drugs and Substances Act, employers in British Columbia can establish policies that prohibit possession and use of drugs in the workplace. Employers have the right to set standards of behavior and performance for their employees, and require that employees be free from the influence of drugs (or other substances) while at work.

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What Employers Should Watch Out For

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Any drug testing and any disciplinary action taken must be done in accordance with applicable laws, such as the provincial or Federal human rights legislation (depending on the employer’s jurisdiction) and the applicable privacy act, and must be based on evidence of impaired performance or safety risks.

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Employers should also be aware that under federal and provincial human rights legislation, substance use disorder is considered a disability.  Discrimination based on disability is not legal, and employers have a duty to accommodate disabilities to the point of undue hardship, considered on a case-by-case basis. Before taking any disciplinary action such as terminating an employee who has shown signs of impairment, we highly recommend seeking legal advice to discuss the particular case and any potential human rights discrimination issues.

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Employers should also consider reviewing and updating their impairment/drug and substance use policies in the workplace, to ensure the correct language is used (i.e. “illegal drugs” etc) and that they include reference to the exemption where appropriate.

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Takeaways

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1. Employers are encouraged to develop policies and procedures (or review and revise existing ones) that address impairment/drugs and substance use in the workplace.
2. Employers should communicate their impairment/drugs and substance use policy clearly to workers.
3. Employers should ask everyone at their workplace to review the existing applicable workplace policy, and confirm whether this exemption modifies your current policy. If you’d like assistance with drafting a workplace policy update, please don’t hesitate to reach out to the writer.
4. Managers and supervisors should be educated in how to recognize and manage substance use issues and employees, and how to apply the workplace policy consistently and fairly.
5. Employers should seek advice before taking disciplinary action against employees that might have a substance use disorder.
6. Employers should establish or promote programs such as an Employee Assistance Program (EAP) to support employees dealing with substance use issues.
7. Review WorkSafeBC resources.

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Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact Chris Drinovz. Our experienced Employment & Disability Group is ready to assist you. Get in touch today.