Marijuana Legalization – How Should Employers Prepare?
As governments in Canada and Ontario at all levels are taking steps towards the legalization of marijuana this summer, employers will need to consider their employment policies surrounding marijuana use by employees. Although the legislation to legalize marijuana use is still in it’s formulation stages, so far it appears that legal marijuana use will be confined to private dwellings and will not be allowed in public spaces. In this blog we offer some tips on how employers can update their employment policies to include rules about marijuana use in the workplace.
There are two types of marijuana use that employers will need to consider in shaping policy surrounding this topic in the workplace. The first is medical marijuana use. Prescription marijuana has already been legal in Ontario for quite some time. Anyone who has complied with the medical use card requirements and has a prescription to use medical marijuana for health-related issues can legally consume marijuana. The second is recreational marijuana use. So how do employers update human resources policies to include a policy surrounding marijuana use in the workplace?
1) Employers should have clear workplace policies regarding drug use and impairment and take time to train employees on the policy.
Employers will need to consider the impact on performance or job function that medical marijuana or any prescription that may impair functional ability. This is particularly important in roles that require safe operation or can put employee health and safety at risk. Consider for example, the crane operator who has been prescribed medical marijuana for a chronic pain condition, and who is responsible for moving very heavy materials on a condo construction site. Any lapse in performance could have severe consequences in the performance of their job function. Employers have a duty to accommodate provided that the employee can perform their job safely, and provided the accommodation does not create undue hardship on the employer.
Employers should ensure that employees understand what the expectation is about marijuana use at the workplace. What steps the employer will take to monitor and control workplace use and make clear the basis for discipline. It is a good idea to have employees sign off on an acknowledgement and understanding of the policy.
Managers should be trained on how to detect the signs of impairment and on enforcement and training of employees on the workplace policies related to marijuana usage.
Employers will not need to tolerate recreational use of marijuana or impairment from recreational use in the workplace but should make their policy clear to employees. Consider what your policies will be about marijuana use at work related celebrations, or off hour events and how much dry or sober time would be expected as an acceptable period before the employee returns to work. Employers will have a duty to comply with health and safety legislation and human rights legislation when formulating their marijuana and/or drug use policy for the workplace.
2) Employers should have a disclosure and accommodation policy in place when it comes to prescription use or disclosure of an addiction.
Employers should set the expectations up front about why disclosure is important and what consequence may flow from lack of disclosure. In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada upheld an employers’ right to maintain a safe work environment in a case where the company had good accommodation policies when it came to medical use and/or addiction. In this case an employee admitted to suffering from a cocaine addiction. The Court also upheld a zero tolerance drug use policy in a safety sensitive work environment.
Employers should accommodate employees who reveal prescription use by discussing the prescription with the employee and also the referring physician. Explain the job requirements to the physician, find out the quantity, form and dosage prescribed and discuss non-impairing alternative treatments. If necessary, consider requesting an independent medical examination.
Employers should accommodate employees who reveal an addiction issue. If any employee reveals an addiction problem related to any substance whether it be to opioid based prescription pain medications such as Percocet’s or Oxycontin, or marijuana or alcohol, an employer should refer them to an expert to confirm the addiction and then accommodate a rehabilitation program and an opportunity to return to work under a last chance contract.
Most employers should already have similar policies in place related to alcohol or prescription medications that would make the incorporation of marijuana usage into their policies easy. When it comes to workplace policies, medical marijuana should be treated like any other prescription medications and recreational marijuana should be treated similar to alcohol.