Preparing Your Sport Organization for Legal Cannabis

Published October 16, 2018

With cannabis becoming legal on October 17th, many sport organizations have been asking themselves the following questions:

• What do we have to know?
• Is it the same for every province/territory?
• What about medicinal marijuana?
• Is marijuana use considered ‘doping’?
• Do we need a “weed policy”?

This blogpost will answer those questions.

LEGAL CANNABIS

There are many articles and resources describing and interpreting the new legislation. We recommend these four as a starting point:

• Cannabis in Canada (Government of Canada)
• Cannabis in the Workplace (Public Services Health and Safety Association)
• The Impacts of Marijuana in the Workplace (Human Resources Professionals Association)
• Marijuana and the Workplace (Canadian Lawyer)

Essentially, the federal government passed a law – the Cannabis Act – that will regulate the sale and possession of recreational marijuana. Previously, cannabis was a ‘controlled substance’ under the Controlled Drugs and Substances Act, but this new legislation amends the old legislation to remove references to most forms of cannabis.

The federal law describes the basic legalities of cannabis sale and possession – for example, individuals can possess up to 30 grams of marijuana in public. Also, importantly, an organization cannot possess any amount of marijuana. Provinces and territories were required to pass their own laws (by July 1st, 2018) further regulating the sale, possession, and use of cannabis.

PROVINCIAL/TERRITORIAL DIFFERENCES

The laws passed by each province and territory can add restrictions to the legalization of recreational marijuana. For example, the federal legislation defines a ‘young person’ as 18 years old whereas the Ontario legislation uses 19 years old. This means that although the federal government intended for 18 year-olds to legally use marijuana, the Ontario government decided that legal use should only be for individuals 19 years-old or older.

The provincial/territorial variations are described in this chart.

Importantly, and this is a common misconception, the federal legislation does not say that individuals can use cannabis wherever they want. That is a provincial/territorial matter. In some provinces and in all territories, recreational use of cannabis is limited to private property like the home and private balconies. Marijuana use is still technically illegal in public areas like a park and walking down the street. Ontario, Quebec and Nova Scotia are the main exceptions – and users in these provinces can smoke marijuana wherever tobacco can be smoked. In BC and Alberta, users cannot smoke where tobacco is restricted, in cars, or in public places frequented by children.

In fact, in Ontario, the provincial Liberal government had previously determined that marijuana could only be used in private areas. However, the new Conservative government that was elected in June 2018 recently loosened those rules and determined that cannabis could be consumed wherever tobacco can be smoked. Sport organizations based in Ontario should review this website for more information.

CANNABIS IN THE WORKPLACE

When we consider ‘marijuana use at work’ we think of the worker or staff member who either a) comes to work high, or b) smokes a joint during lunch or on break. The legalization of cannabis has very little effect on either of these two scenarios.

The first scenario is related to impairment. If the worker or staff member is impaired then they should not be permitted to work and should face any discipline as may be described in the organization’s human resources policy or the employee’s employment agreement. A worker can be impaired for a number of reasons – alcohol, illegal drugs, prescription medication, etc - not just by being high on marijuana.

The second scenario is slightly more complicated. If the worker leaves the workplace during lunch, smokes a joint, and comes back to work, should they be able to resume their duties? Again, this scenario relates to impairment. Is the worker too impaired to work? Signs of impairment should be described in the organization’s policies.

Controversially, the Toronto Police Service determined that officers could not use recreational marijuana within 28 days of reporting for duty. In contrast, Calgary’s police force announced a complete ban on recreational marijuana while Vancouver’s police force permits use provided that officers arrive ‘fit for duty’. Standards for determining impairment are still developing.

Can the worker light up a joint in the workplace if the workplace is outdoors (e.g., baseball diamond, soccer field, etc.)? Most provinces and territories have legislation that says this practice would be illegal and an organization’s policies should make this clear.

MEDICINAL MARIJUANA

In the above section, we started that a worker could be impaired after using prescription medication. This is the same case with medicinal marijuana that has been prescribed by a doctor to treat an individual’s anxiety, depression, arthritis, chronic pain, or other ailment. So if a worker has legitimate medicinal requirements for marijuana use, then can they be considered “impaired” in the workplace?

This scenario is not new, and in fact has been tested in case law. An employee or worker who requires medicinal marijuana must inform the organization. The organization must then reasonably accommodate the individual to the point of undue hardship – just like an organization would need to accommodate an individual with a disability.

Two relevant cases:

• Bottiglia v. Ottawa Catholic School Board, 2015. Mr. Bottiglia wanted to return to work after an illness but the school board first requested an independent medical examination. The Ontario Human Rights Tribunal confirmed that the school board could make this request [1]. This case showed that employers may reasonably request independent proof of medical issues before being required to accommodate.

• Aitchison v. L & L Painting and Decorating, 2018. Aitchison was terminated from work for smoking marijuana in violation of the organization’s ‘zero tolerance policy’. Aitchison claimed the organization permitted his use of medicinal marijuana. The Ontario Human Rights Tribunal found that the organization did not condone his use of marijuana, he did not make the organization aware of his medicinal needs, and his use of marijuana while painting high rise buildings was unsafe. This case showed that an individual “does not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes” (para. 165).

Degrees of impairment, and when and how an employer needs to accommodate medicinal marijuana use, are tricky subjects and should be described in detail in the organization’s policies. To avoid the challenge of determining whether or not an individual is ‘impaired’ from marijuana use, some organizations may adopt a ‘zero tolerance’ policy.

MARIJUANA USE MAY STILL BE DOPING

Just because Canada has legalized cannabis does not mean that other countries or organizations have to accommodate us! In fact, we know that the US still considers cannabis to be a ‘Schedule 1 drug’ and there may be challenges for Canadians crossing the border who are found to have used cannabis, work in the cannabis industry, or even invest in cannabis stock.

Similarly, the World Anti-Doping Agency (“WADA”) has cannabis on its list of prohibited substances. In this article, Paul Melia of the Canadian Centre for Ethics in Sport (“CCES”) explains how recreational marijuana use by an athlete may show up in an in-competition test and be considered ‘doping’. The article also quotes USports Chief Operating Officer David Goldstein who says that they are working with both WADA and CCES to see if lower category university athletes (those not competing internationally) can be screened differently for marijuana use. The CCES has posted additional resources for stakeholders.

But for now, marijuana use by any athlete subject to the Canadian Anti-Doping Program may be considered doping if the athlete is found to have the substance in their system during an in-competition period. The CCES defines the in-competition period as the period commencing twelve hours before a competition in which the athlete is scheduled to participate, through to the end of such competition and the sample collection process related to such competition.

Based on the above, it is critical for athletes to understand that, even if they use marijuana out-of-competition (i.e., not within the in-competition period as described above), if the substance remains in their system and is detected during the in-competition period, they can still be found to have committed an anti-doping rule violation and they can be subject to a period of suspension as well as other consequences, such as disqualification of results (i.e., medals or points) or the loss of prize money.

WEED POLICY

In this blogpost we have referenced a few areas that an organization should consider including in a policy, such as:

• Formally prohibiting marijuana use in the workplace (even if smoking tobacco may be allowed)
• Signs of impairment
• Discipline for showing up to work while impaired
• Accommodating medicinal marijuana
• Marijuana use by athletes

We are always hesitant to recommend brand new policies because of the risk of over-regulating amateur sports. However, in this case, it would be a prudent risk management measure and information resource for sport organizations to adopt policies that address cannabis use. We recommend the following:

• Impairment and Accommodation Policy. This would be an internal policy for employees and workers that would be included alongside a human resources policy. The policy should address signs of impairment, when an impaired individual should not work, and if any discipline should be applied. ‘Impairment’ would not be limited to impairment from cannabis – but also from alcohol, illegal drugs, and prescription medication. The policy should also address accommodations for employees and workers who have medical reasons for potentially being impaired from legal use of cannabis or other drugs.

• Conduct Policy updates. Most organizations already have conduct-related standards for marijuana use by participants. Where necessary, these standards should be reviewed and strengthened to ensure that participants (especially athletes) are aware that marijuana use, even though legal, is still prohibited by anti-doping organizations.

• Human Resource Policy updates. Most organizations already have conduct-related standards for their employees, either in a conduct policy, human resource policy, or employment agreement. Where necessary, these standards should be reviewed and strengthened to ensure that employees are aware that marijuana use in the workplace is prohibited. The updates should also reference the new Impairment and Accommodation Policy.

We understand that the Canadian Olympic Committee, as part of the of NSF Sharing Centre, has prepared a Cannabis Policy template for use by national sport organizations based in Ontario, Quebec, Alberta, and British Columbia. Although policy templates are useful guidelines they do not always work within an organization’s existing policy structure. We would be happy to work with your sport organization to adapt or develop the appropriate policies to address cannabis use.

Steve Indig (SJI@sportlaw.ca)
Kevin Lawrie (KRL@sportlaw.ca)

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[1] “ An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing his or her employer with a reasonable amount of information about their physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship (para. 99)”