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Now Your Tenants Know Your Cannabis Rules…But Do Your Staff?

Posted in Bylaws / Regulations, Communications, Employment, Health & Safety, Industry Trends, Insurance, Legal, Legislation, Newsworthy, Real Estate Law

Now Your Tenants Know Your Cannabis Rules…But Do Your Staff?

Most multi-res industry professionals have now updated their leasing documents in anticipation of the legalization of cannabis use, cultivation and distribution to ensure the health and safety of residents; preservation of property; and the avoidance of resident conflicts. With cannabis legalization scheduled for October, industry professionals would be prudent to turn their attention to their employees, “agents”, and contractors, all of whom are in a position where their “legal” cannabis use can give rise to employer liability. The best place to address cannabis issues is in the employer’s workplace and substance abuse policies and the best time to address it is before the cannabis legislation takes effect.

Multi-res industry employers owe a legal “duty of care” to residents of their residential complexes. A breach of the duty of care, combined with a breach of the “standard of care”, attracts legal liability where those breaches result in personal injury or property loss. For example, landlords of apartment complexes must ensure that lobby areas are free of hazards and the “standard of care” to do so is fairly well established: if a terrazzo floor is wet, the expectation from a liability perspective is that staff will place a sign indicating the floor is slippery, thus warning tenants to take care. A failure to provide such a warning and a slip and fall by a tenant resulting in personal injury will result in a breach of the standard of care and liability for payment of damages to the tenant.

When the use, cultivation and distribution of cannabis is made legal, the use of the product by employees will be legal, just as consuming coffee or snacking while working is “legal”. There is no question, however, that legal cannabis consumption can impair motor skills, judgement and cognitive reaction. In a multi-res setting, the impairment of personal faculties resulting from unrestricted cannabis consumption can result in, or contribute to, property damage and personal injury of residents, thus leaving the employer exposed to liability. On-site staff, who are often called upon to react in emergency situations or who are “on call” 24/7, are particularly vulnerable to liability if their “impairment” due to legal cannabis consumption contributes to personal injury or property loss of a tenant. Leasing agents or site staff whose judgment is impaired by cannabis can make paperwork errors in rental applications which cannot be cured once the landlord “accepts” the offer to lease, and this in turn can result in significant financial loss. Cannabis cultivation and distribution by the landlord’s employees can also lead to legal liability arising from security issues (theft, break-ins) to resident impairment, followed by personal injury to the resident. 

The obvious place to address the foreseeable legal risks to employers associated with legal cannabis consumption, cultivation and distribution is in the employer’s workplace policies, including the employer’s substance abuse policies. The employer’s policies should clearly outline restrictions on employees’ use of cannabis while on the job, emphasizing compliance with the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, and the Ontario Human Rights Code. All provinces in Canada have similar equivalents to these three Ontario statutes and each should be addressed in the employer’s workplace policies, preferably before cannabis consumption is legalized in October.

Restrictions on employees, agents and contractors’ cannabis cultivation and distribution should also be addressed in on-site or general workplace policies to ensure that the workplace rules are clear and designed to protect employers and employees from legal liability to residents based on a breach of the landlord’s standard of care. In our view, apart from compliance with Human Rights Code requirements, there should be a blanket restriction on cannabis cultivation, consumption and distribution by all employees, agents and contractors while “on the job”. A failure to have such workplace policies in place will, in the event of accident, injury or other loss attributable in whole or in part to cannabis consumption, cultivation, or distribution, will be default evidence of a breach of the employer’s legal duty and standard of care.

For more information about multi-res employer obligations or for legal services relative to ensuring that your workplace employment policies address cannabis consumption, cultivation and distribution, contact Joe Hoffer or Kristin Ley of our multi-res legal team: hoffer@cohenhighley.com or ley@cohenhighley.com If you are a condominium corporation operator, manager or employer contact Laura Glithero at our office: Glithero@cohenhighley.com