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Littler LLP: Monty Verlint, Rhonda Levy

The Legalization of Recreational Marijuana Doesn't Translate into a Free-for-All in the Workplace

This article was first published in HR Professional Magazine.

Bill C-45, the Cannabis Act (the Act), came into force on Oct. 17, 2018, creating a legal framework for the recreational use of marijuana.

Although it may seem that this will create a new set of complex issues for employers to manage, there already exists prior experience and past practices managing the use of alcohol and illegal drugs in the workplace, and prescription drugs that could cause impairment while working.

The legalization of recreational marijuana does not provide employees with a right to use marijuana in the workplace. Both now and after the Act is in force, employers have the right to establish policies pertaining to the use and possession of marijuana at work, which is similar to their right to do so with respect to the use of alcohol and illegal drugs. This is particularly important when the workplace environment is safety-sensitive, as employers must meet their obligations under applicable occupational health and safety legislation to protect the health and safety of their workers and the public.

As many employers will already have existing drug and alcohol policies in place, the legalization of recreational marijuana will require employers to update these policies. If an employer does not yet have an existing policy, it would be a good idea to create one. A comprehensive drug and alcohol policy is an important means of establishing what is and is not acceptable with regard to marijuana use and possession in the workplace.

New and updated drug and alcohol policies may be zero-tolerance, forbidding the use and possession of marijuana at work and forbidding employees from attending work while impaired, but subject to the obligation to accommodate employees with substance addictions and disabilities. A policy may provide details about the disciplinary process to be followed if an employee is suspected of acting in breach of the policy and establish grounds for termination. It may also require employees to proactively disclose issues regarding drug or alcohol abuse, dependency and addiction for the purposes of health and safety, accommodation and treatment.

Should an employee fail to make such disclosure, but then do so only after an incident that requires discipline, the policy could specify that the employer may discipline the employee for breaching the disclosure requirement of the policy. However, an employer may not discipline or terminate the employee simply because the employee may have an actual or perceived addiction, as an addiction is a disability under human rights legislation and such an action would be a human rights violation.

As stated above, the implementation of a zero-tolerance policy does not free the employer from the obligation under human rights legislation to accommodate disabled employees who have been prescribed medical marijuana – or employees who are addicted to marijuana – to the point of undue hardship. Employers are entitled to seek appropriate medical documentation regarding the precise restrictions and recommended accommodation, but not the diagnosis or medical condition. However, a prescription from a physician for medical marijuana – or a marijuana addiction – does not give an employee the right to be impaired at work when the employee’s impairment could put the employee’s health and safety at risk or threaten that of their co-workers or the general public. In such safety-sensitive circumstances, an employer has the right to ask the employee not to report to work in an impaired state. In addition, employees are still forbidden from smoking marijuana in the workplace in violation of anti-smoking laws, whether or not they have a prescription for medical marijuana.

Employers should train their supervisors and managers on their policies regarding marijuana possession and usage in the workplace, including identifying the signs of marijuana usage and how to address an employee using marijuana. Existing and new employees should be provided comprehensive training about their employer’s policies by supervisors and managers who have been thoroughly educated about their responsibilities. Employees should also be asked to sign new or updated policies to acknowledge that they have been advised of them and understand them.

Unfortunately, definitive testing of impairment from the use of marijuana is not currently available, but it is possible to assess the level of THC (the primary psychoactive chemical in cannabis) in an employee’s body. In other words, current testing methods cannot determine whether a person is actually impaired at the time of testing and the case law has recognized this. According to Health Canada, cannabis-induced impairment may persist for 24 hours, but there are differing views on this.

Unlike in the U.S., pre-employment testing is generally not permitted in Canada except in limited circumstances. However, there appears to be a trend in favour of the implementation of random drug and alcohol testing for employees who are in safety-sensitive positions for health and safety reasons, although a general problem of drugs in the workplace is generally required. Post-incident and reasonable-cause testing may be more easily implemented, depending on the nature of the workplace and positions held.

Once an employer has determined that an employee has breached its policies, the next step is to proceed with the disciplinary consequences for breach, as outlined in the policy. In some cases, for example, after a history of carefully documented progressive discipline or upon breach of a last-chance agreement, termination of employment for just cause may be appropriately considered. By establishing such a history prior to termination, the employer may be freed from a requirement to provide notice or payment in lieu thereof. As disciplining or terminating an employee due to suspected marijuana use in the workplace can be a legally complex matter, particularly in this new landscape, employers should consider seeking guidance from experienced legal counsel before proceeding.

The legalization of recreational marijuana will undoubtedly create a new set of legal developments in the future, both by the legislature and by the courts. We look forward to monitoring the legal evolution of drug use and testing in the Canadian workplace as the story unfolds.

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