Canada: Happy Holidaze: What Employers Should Know About Edibles And The Holiday Party Season

As of October 17, 2019, the Cannabis Act governs the sale and production of edible cannabis products, cannabis extracts (i.e., oils), and cannabis topicals (i.e., skin creams). While these new products come with several restrictions and conditions on producers, the rollout of the ever-popular edible cannabis products, or "edibles," may have an effect on employers both inside and outside the office. Edibles and other cannabis products are expected to be on the market by the new year and could be hitting the shelves as early as December 17, posing a potential risk to employers as employees seek to enjoy more than just eggnog at the office holiday party.

How Edibles Differ from Dried Cannabis

Unlike dried cannabis, which has been legal for recreational purposes since October 2018, edibles can take many forms including as baked goods, candies, chocolates, and capsules. These products are ingested orally and make their way into the bloodstream through the digestive system.

One of the ways that edibles may effect employers stems from the way edibles are ingested. Instead of being inhaled and entering the bloodstream almost immediately, as is the case with smoking cannabis, edible cannabis enters through the digestive system causing the psychoactive ingredient, THC, to have a slower onset; this is called the "latency period." Because of this longer latency period, individuals may be tempted to overindulge in an attempt to speed up the process. Unfortunately, this can sometimes lead to what is known as 'greening out,' whereby the individual ingests an excess of THC, resulting in nausea, dizziness, excessive sweating, anxiety, and other adverse symptoms.

Holiday Parties

While most employers are aware that alcohol can cause or exacerbate issues at office holiday parties, cannabis is no different – especially when the two intoxicants are mixed.

Under the Cannabis Act, it is considered a "criminal activity" for an organization to possess cannabis unless otherwise authorized. Fines against organizations for violations of the Cannabis Act can be as high as $100,000. So, it appears that employers serving cannabis at work-related functions is not an option. However, employers should still be wary of employees bringing their own recreational cannabis to an event and the possible effects.

Previously, cannabis was necessarily consumed outdoors, making it easy for employers to spot employees entering and exiting to imbibe. Soon, edibles will be available and easily consumed indoors and discreetly, making it difficult to monitor those who partake. As such, it may be wise to ask employees to refrain from using recreational cannabis while attending the office holiday party. It would likewise be prudent to caution employees about mixing cannabis and alcohol, and to reiterate that employees partaking in either kind of consumption are not to drive home.

Just as an employer should monitor the alcohol intake of employees and watch for indications of impairment, employers should also be aware of the signs and symptoms associated with cannabis use. Bloodshot eyes, increased appetite, slowed reaction time, and sleepiness are all indicators of cannabis use. Employers should ensure that managers or supervisors are trained on identifying these and other indicators so that cannabis use can be monitored and a safe work environment be maintained. This applies to the regular workplace and holiday party locations.

Employer Host Liability

While courts have yet to comment on employer liability linked to employee cannabis use at a social event, many cases have attributed liability to employers for an employee's actions while under the influence of alcohol.

In Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429 (BCSC), an employee had been provided with a substantial amount of alcohol by the employer during working hours. After the employee finished work, he went to two nearby pubs and continued to consume. The employee chose to drive home that night and was involved in a serious accident that rendered him a quadriplegic. Ultimately, the court held that the employer was 75% liable for the employee's accident because the employer had failed to supervise the employee's consumption and did not provide a safe work environment. The employer was ordered to pay over $2 million to the employee.

Similarly, in Hunt v. Sutton Group Incentive Realty Inc., 2001 CanLII 28027 (ONSC), an employee had attended the employer's holiday party where alcohol was freely provided. The employee became intoxicated and, after the party, went out to a bar for a few more drinks. As in the Nike case, the employee chose to drive home and was involved in an accident that left her with serious injuries. The Court found the employer to be 25% liable for the accident because the employer failed to ensure that the employee had a safe ride home. While this case was ultimately set down for a new trial, the decision is still cited by courts for the principle that an employer has a duty to protect an employee and take reasonable care to ensure his or her safety.

The above cases, and others like them, suggest that Courts will look to: (1) whether the employer provided alcohol; (2) whether the employer knew the employee was intoxicated; and (3) whether the employer made available alternate forms of transportation home. Similar concerns will likely be addressed where edibles or other forms of cannabis are ingested.

What Employers Can Do

Employers should remain mindful of the effects of both alcohol and cannabis consumption at holiday parties. The following tips will help employers minimize the risk of employer host liability when hosting a company holiday party or other social event:

• be diligent in monitoring employees' consumption;
• be aware of and train managers or supervisors on signs of intoxication for both alcohol and cannabis;
• warn employees of the effects of mixing cannabis and alcohol, and remind employees of company drug and alcohol policies;
• avoid 'open bars' and instead provide a limited number of drink tickets to each employee;
• provide free non-alcoholic beverages;
• where possible, hire a professional bartender and/or serving staff who are trained to identify signs of overconsumption and intoxication;
• do not provide employees with cannabis;
• ensure food is served at any time alcohol is served;
• implement a hard cut-off time for the event;
• provide taxi chits, corporate ride share accounts, or another method of safe transportation home for employees;
• if an employee insists on driving home, call your local police; and
• lead by example as a member of management.

Finally, as is the case with any kind of intoxicant, employers should ensure that they have clear and reliable drug and alcohol policies that include the ingestion of edibles.

Miller Thomson will continue to monitor the law surrounding these issues and will provide further updates when they occur. If you have any questions regarding employer host liability, drug and alcohol policies, or any other labour and employment issues, a member of our national Labour & Employment Team would be happy to assist you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.