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The Legalisation of Cannabis in Canada: A New Challenge for Employers and the Role of Artificial Intelligence (2)

By Marty Rabinovitch, Devry Smith Frank LLP

Emerging technologies are able to predict with a high degree of accuracy how the Canadian courts will decide issues related to the legality of drug testing of employees in the workplace.

Recreational cannabis was legalised in Canada on 17 October 2018, despite the government not having a statutory regime in place regarding how drug testing and screening should be conducted in the workplace.

In providing legal advice to employers about this issue, lawyers have relied on the common law (court decisions). This can be diffcult because the common law on drug
testing in Canada remains unsettled.

Search tools which rely on Artificial Intelligence (AI) can assist lawyers and Human Resources professionals to more accurately determine whether drug testing of employees is permitted in a specific situation. When determining the answer, the courts must balance the employee’s right to privacy and the employer’s obligation to maintain a safe working environment.

To assist, AI search tools may ask questions about the employee’s specific duties and responsibilities, specific indicators of impairment and details of any non-drug related explanations for the behaviour in question.

Now that recreational cannabis is legal, Canadian employers should update their policies to ensure that it is clear to their employees that they are prohibited from consuming recreational cannabis during working hours and from being impaired while at work. The policy should also state that any employees who have prescriptions for medicinal cannabis have a positive duty to disclose this to their employer so that appropriate accommodations can be made. Finally, the policy should set out specific circumstances in which the employees may be subjected to drug testing. While a court may not ultimately uphold an employer’s drug-testing policy, having such a policy in place should nevertheless reduce uncertainty with issues related to drug testing.

Marty Rabinovitch

Marty Rabinovitch

Devry Smith Frank LLP, Toronto, Canada
T: +1 416 449 1400
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Devry Smith Frank LLP (DSF) is a full-service law firm based in Toronto, Canada. DSF provides professional and affordable client-tailored service.

Marty Rabinovitch is a Partner and Head of the Employment Law Group at Devry Smith Frank LLP. His practice focuses on representing employers with respect to issues which arise in the workplace. Marty has extensive employment litigation experience and provides legal services to both English- and French-speaking employers.

Published: Labour Law Newsletter,  No. 06, Spring 2019 l Photo: edb3_16 -

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