The recent legalization of non-medical cannabis in Canada has led to a sudden increase in cannabis related businesses.
These businesses must deal with complicated employment issues and workplace regulations that are rapidly changing and often unclear. This new frontier poses a unique challenge for cannabis industry employers wishing to hire staff and enact occupational health and safety best practices in their organizations.
The following are some issues for employers to consider.
Q: What should employers be considering when hiring new employees?
A: Cannabis industry employers must ensure compliance with employment laws and standards, but also cannabis licensing and permit requirements. This means that new employees should be carefully vetted to minimize the risk that licences are delayed or denied, and to avoid other future costs and liabilities.
As a starting point, most provinces require that retail stores only employ employees who have passed some form of background check, such as BC’s “Worker Security Verification” for non-medical cannabis retail store employees.
The background checks required for each employee will vary depending on factors like their level of importance in the company, or the sensitivity of their position. In general, cannabis industry employers should consider conducting a wide range of investigations for potential employees that may include:
- criminal background checks;
- credit checks or consumer reports;
- contacting references and previous employers;
- court record reviews; and
- (ironically) drug testing.
For particularly sensitive or high risk positions, such as a managing budtender who oversees customer samples and inventory, an employer might even consider a full “character check”, which includes interviews with various friends, family members, former employers and business partners, and other individuals familiar with the employee.
Q: What training should employers be requiring for budtenders, dispensary employees, and other industry professionals?
A: As in other industries, cannabis industry employers are responsible for ensuring that all employees have sufficient training to perform their job safely and effectively. At a bare minimum, employers must ensure that employees have up-to-date training in all applicable occupational health and safety requirements.
Occupational health and safety rules vary from province to province, but all include general workplace safety requirements, such as BC’s WorkSafe BC guidelines, as well as rules for specific jobs, like Ministry of Transportation requirements for commercial drivers.
Some positions require specific training, according to government regulations or policies. In federally licensed cannabis facilities, certain key personnel like master growers and heads of laboratories require “sufficient knowledge” of the applicable regulations, and the necessary training to fulfill their responsibilities at the facility. Many licensing applications will require disclosure of key personnel’s qualifications, and any training they have received or will receive.
In retail dispensaries, training requirements vary from province to province. Some provinces, like BC, have indicated that government training programs will be required in the near future, so employers should ensure they are regularly checking for updated training requirements. At a minimum, retail employers should be regularly reviewing government and trade association resources to confirm that they are providing employees with training on licensing and regulatory requirements, such as:
- age verification and acceptable identification;
- monitoring visitors and maintaining security; and
- detecting and dealing with intoxicated customers.
Q: How should employers deal with cannabis in the workplace?
A: Employers are responsible for maintaining a safe and functioning workplace and should clearly set out workplace rights, obligations and standards in formal documentation, such as in employment contracts, written human resource policies, training manuals, and similar documents.
Employers should consider the implementation of an impairment policy that takes a “fitness-to-work” approach, providing specific guidelines for employees to meet workplace safety obligations. This would require an assessment of the tasks being carried out in the workplace, and identification of the specific hazards that could arise from performing those tasks while impaired, as well as installing the appropriate controls to eliminate or minimize those risks.
Impairment policies are quite common in most workplaces, and should be developed in consultation with worker representatives, and depending on the size of your workplace, input from an occupational health professional may also be beneficial. In addition, employers should consider how policies can satisfactorily accommodate disability-related impairment under application human rights law (i.e., provincial human rights codes, which require that some employees have access to medical substances that might affect their performance).
For licensing purposes, cannabis industry employers must be particularly vigilant to restrict prohibited drugs and substances in the workplace. In particular, if employers allow employees to use medical cannabis at the workplace, the employers must carefully document their policies regarding cannabis use. Unintentional breach of somewhat technical rules (such as allowing employees to smoke too close to doors or windows) can jeopardize an employer’s licensing status or risk fines and penalties.
Liam Oster and Henry Ka are lawyers at Watson Goepel LLP, a full service law firm based in Vancouver, practicing in the firm’s Cannabis Law practice group.