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Lerners LLP: Joseph J. Masterson

Will your workplace be up in smoke?

By Joe Masterson

Most probably not. Still, it will be legal for Canadians to consume recreational marijuana on October 17th, 2018. What does this mean for employers?

Just like alcohol, it will be legal to consume this drug and consumption may lead to impairment. So impairment in the workplace becomes a concern because use will no longer in and of itself be a concern. The bottom line is that just because recreational marijuana may be legal for personal use, an employer’s expectation that employees be unimpaired when they are at work is not going to change.

How do employers detect marijuana impairment?

With alcohol use, the physical characteristics of impairment can often be readily recognized. Common traits of impairment, for example, may be slurred speech, glossy eyes, and the smell of one’s breath. But with marijuana, impairment can be much more difficult to detect, especially when it is ingested in a manner other than smoking. There may be less knowledge and experience in detecting marijuana impairment.

Employers will have a duty to accommodate employees who use medical marijuana, and also those who can show they have a marijuana addiction, or who suffer from a cannabis use disorder. This duty is no different than an employer’s existing obligations under Human Rights legislation relating to the accommodation of any other employee disability, whether drug or alcohol related, or otherwise. Recreational use, without an associated disability, is not protected and brings no duty to accommodate.

Without question, a well-drafted workplace drug and alcohol policy will be helpful for employers to effectively manage their workplace once the new cannabis legislation takes effect.

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