Marijuana At Work: Six Things Employers Should Know

MC&A September Newsletter 2018

Marijuana leaves

Marijuana At Work: Six Things Employers Should Know

The Canadian government has announced its intention to legalize marijuana for non-medical use in the near future.  Meanwhile, medical use of marijuana has been on the rise in Canada for some time. The rapid and significant changes to the legal status of marijuana raise new questions and challenges for Canadian employers. Here, we provide a general overview of the most important things employers should know about marijuana in the workplace:

What is the Current Legal Status of Marijuana in Canada?

The possession, production and trafficking of marijuana are prohibited under the Controlled Drugs and Substances Act, except where authorized by exemptions or regulations, such as those for medical marijuana. The Government of Canada has announced the legalization of recreational use of marijuana, effective on October 17, 2018.

Does Legalization of Marijuana Mean Employees can be Impaired at Work?

No. Employers will have the right to set rules for non-medical use of marijuana in the workplace in much the same way that employers currently set rules for use of alcohol. In particular, employers may prohibit the use of marijuana at work or during working hours and may also prohibit employees from attending work while impaired. Workplace rules regarding non-medical use of marijuana may be enforced through the application of the employer’s progressive discipline policy.

Does the Duty to Accommodate Extend to Medical Marijuana

Yes. The duty to accommodate, as required by provincial and federal human rights legislation, extends to disabled employees who use medical marijuana. These employees are to be accommodated in the same way as an employer accommodates any other disabled employee who has been prescribed medication. Accommodation is also required for employees who may have an addiction disability. However, the duty to accommodate is not without limits.

How Far Does the Duty to Accommodate Employees Using Medical Marijuana Extend?

Human rights legislation requires that a disabled employee be accommodated. What, precisely, does this mean in the context of medical marijuana?

  • A prescription for medical marijuana does not entitle an employee to be impaired at work;
  • A prescription for medical marijuana does not entitle an employee to compromise his or her safety, or the safety of others;
  • A prescription for medical marijuana does not entitle an employee to smoke in the workplace;
  • A prescription for medical marijuana does not entitle an employee to unexcused absences or late arrivals;
  • The employer is, however, required to attempt to find suitable workplace accommodation for disabled employees who have a prescription for medical marijuana use, just as would be required for any other disabled employee with a medical drug prescription.

What Can Employers Do to Meet Their Obligations?

Employers may need to revisit workplace policies that address drug and alcohol use, with attention to two competing obligations: on the one hand, employers have a duty to accommodate disabled employees, and medical marijuana is used to treat medical conditions that can constitute a “disability”.  On the other hand, employers must take every reasonable precaution to ensure the safety of their workplaces and they continue to have the right to prohibit impairment on the job. Assessment of impairment at work may prove to be the most difficult aspect of designing and implementing policies regarding use of marijuana, as testing for drug and alcohol use remains one of the most contentious contemporary
issues in Canadian workplace law.

Employers faced with an accommodation request may wish to consider providing similar accommodation measures it does for other disabled employees. These measures may include moving the employee out of a safety-sensitive position, providing more frequent breaks, implementing alternative scheduling; or altering the employee’s duties, etc. As with other accommodated employees, an employer may wish to request medical information from the employee’s doctor, or seek the assistance of an independent medical examiner where there are questions about the employee’s fitness for duty, and what will be appropriate accommodation.

What is the Future of Marijuana in the Workplace?

The changes to the legal status of marijuana have created unique and unprecedented challenges for employers. It may seem daunting; however, employers need not change their practices drastically. To accommodate an employee who uses medical marijuana, an employer can start by mirroring the practices it has developed for accommodating any employee who has been prescribed drugs that have the potential to impact or impair his or her work. To limit the use of non-medical marijuana at work, an employer can look to existing practices related to use of alcohol, other prescription drugs or cigarettes.

Nevertheless, there will be some changes. It is likely that zero tolerance workplace policies for marijuana use or possession will become unenforceable. We may also see employees begin to request or negotiate for coverage under health and benefits plans for medical marijuana prescriptions.

With time, however, many issues and uncertainties surrounding the use of marijuana will be litigated. We will be provided with lessons from the Courts and tribunals as to how an employer can best ensure that it fulfills its human rights obligations, while also ensuring the workplace remains safe and productive.

This article was provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

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