The Rudner Law Annual Holiday Party Post: The Cannabis Edition

It has become a tradition for our Firm to write a post around this time each year dealing with the potential pitfalls of office holiday parties. In fact, we have so much material under this tag that for our post last year, Stuart was able to put together a “highlight reel” of key content from previous years!

We continue to write on this topic each year because it remains an ongoing concern for employers as we head into yet another holiday season. Although office holiday parties can be an amazing way to thank employees for their hard work all year, they can also be a minefield of potential liability for employers. This liability can crop up in any number of ways, including through harassing or offensive comments, inappropriate sexual or romantic advances, inadvertent discrimination, and excessive alcohol consumption.

This year, in addition to these issues, employers also need to be prepared to deal with a brand new potential pitfall: the use of recreational cannabis.

Recreational cannabis was legalized across Canada on October 17, 2018, meaning that for the first time in holiday party history, an employee can potentially indulge in a jolly “toke” along with their cocktail as part of the office festivities.

From the moment legalization was announced, employers have expressed significant concern over the potential impact on the workplace. For the most part, legalization of recreational cannabis has not fundamentally altered the average work environment. However, office holiday parties are one area in which employers should be concerned about the impact of cannabis use. Cannabis can be a highly intoxicating substance which presents many of the same concerns for employers as alcohol.

In that regard, alcohol consumption at office parties remains one of the biggest recurring concerns for employers. Unfortunately, it is all too common for employees to forget that the office party is, ultimately, a work function. This means that they may overindulge in alcohol and behave as if all workplace rules cease to apply. This can lead directly to the inappropriate behaviour described above, but it can also have other serious implications for employers, particularly if the employee chooses to drive home from the party afterwards.

It is easy to see how adding recreational cannabis into the mix could substantially increase the risk of liability for employers.

While this is a serious concern that must be addressed head on by employers, our recommendation for dealing with cannabis use is the same as that for alcohol consumption, and almost all other potential holiday party faux paus: have a policy in place.

Employers can avoid many issues associated with office social events by establishing policies that directly address issues such as limiting alcohol consumption, making arrangements for safe travel home and confirming that workplace policies, including policies relating to workplace harassment, remain in effect even in less formal workplace environments.

Recreational cannabis use at work-related functions can and should be addressed in an employer’s “social events” policy and/or as part of a comprehensive alcohol and drug policy. If, as an employer, you are not prepared to tolerate any use of recreational cannabis at a workplace event, even where alcohol is being served, that is perfectly acceptable – but you must communicate this to your employees.

Communication means not only drafting the policy, but implementing it by: 1) ensuring that your employees read and understand their obligations therein, and 2) monitoring and enforcing compliance with the policy, including imposing appropriate discipline when there is a breach. Employers are free to set the rules of the workplace, including the rules that will apply at holiday parties. However, these rules will not be worth the paper they are written on if employers do not communicate them clearly to employees and ensure that they are followed.

Key Tips for Managing Recreational Cannabis Use at Office Parties

1. Have a policy or policies that make it expressly clear to employees whether or not recreational cannabis use is acceptable at any work-related event
   1. If you will be taking the position that recreational use of cannabis is strictly prohibited at all times, even where otherwise legally permissible, make sure your policy reflects that
   2. Ensure that your policy makes a clear distinction between recreational cannabis and cannabis used for medicinal purposes – you may wish to refer employees to your policies relating to accommodation in the workplace
   3. Make it clear that failure to comply with the policy or policies will result in discipline, up to and including termination of employment for cause
2. Provide copies of the policy or policies to your employees and ensure that they read and understand them
   1. You may wish to provide training to employees, or have them respond to a short quiz after reviewing the policy to confirm they understood the content
3. Remind employees of the applicable policy or policies prior to office social events and invite them to ask questions if they have any
4. Monitor employees to ensure compliance
5. Discipline employees for breach
   1. As always, employers must adopt a contextual approach when determining the appropriate disciplinary response to an employee’s misconduct; you should never assume that a breach of any policy will automatically warrant just cause for dismissal

In summary, the biggest mistake that employers make when it comes to holiday parties is failing to properly communicate to employees what the expectations of behaviour are when in this type of setting. Cannabis use certainly presents a new twist but it’s easily addressed. It is up to the employer to set the rules of the workplace and to communicate those rules clearly to their employees. If that is done properly, then it is more viable to discipline those that abuse the opportunity to celebrate the holidays in a more informal setting.