Marijuana Legalization – How Should Employers Prepare?

The soon-to-be legalization of the recreational use of Marijuana will bring a seismic change in the Canadian social and legal landscape and become one of the Top Issues in HR and Employment Law for 2018. While the medicinal use of marijuana in Canada has been legal for some time now, legalization of the recreational use of this drug is now on the horizon. Bill C-45, the federal government’s marijuana legalization bill, was passed on June 19, 2018, resulting in confirmation that marijuana products will be legally consumable across Canada starting in a few weeks’ time, on Oct. 17, 2018.

Employers who want to avoid unwanted accusations of violations and health and safety issues will have to become familiar with these new laws and revise their drug and alcohol policies to now include marijuana. 

Can Recreational Marijuana be used at work?

This should ease some fears for employers: the answer to the above question is, unequivocally, no.

In Ontario, Bill 174, known as The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017, is Ontario’s omnibus legislation that has enacted, amongst other statutes, the Ontario Cannabis Act, 2017. Bill 174 bans the smoking of tobacco and cannabis (along with the use of vapor products like e-cigarettes) in:

  • any public place;
  • workplaces; and
  • motorized vehicles.

In fact, the consumption of marijuana in these spaces can result in provincial offences and fines for individuals of up to $5,000.

Despite the law being quite clear on this issue, it is nevertheless extremely important that employers have policies in place that regulate the prohibition of recreational marijuana in the workplace. Employers ought to; confirm in writing and ensure that employees understand what the expectation is about marijuana in the workplace, the steps an employer must take to monitor and control workplace use, and finally make clear the basis for discipline in the event that a policy is breached. 

What should your policy say?

Sharing a clear drug, alcohol and marijuana policy with all employees will help to establish shared guidelines around what is acceptable, and what is not. Such a policy should include: 

  • A reiteration that drugs, alcohol and recreational marijuana are prohibited from the workplace.
  • Employers should outline disciplinary actions and grounds for termination in cases where employees possess or consume these substances at work.
  • The consequences of smoking indoors, unsafe equipment handling, or any kind of action that makes other employees feel unsafe or uncomfortable should also be clearly outlined.
  • 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.
  • Consideration on 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, especially if that employee works in a safety-sensitive position. 

Employers of course 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. In this respect, employers should also include a specific section on medical marijuana, outlining which forms of medical proof will be required and what accommodation (if any) is required. 

Medically Authorized Marijuana – The Accommodation Process

Under the human rights legislation in Ontario, all employers have a duty to accommodate the needs of employees with disabilities to the point of undue hardship, to make sure that they have equal opportunities as well as that all have an equal access and enjoy equal benefits. The goal of accommodation is to allow employees to take part equally in employment.

Employees who use medical marijuana are entitled to the same accommodation that is offered to employees who use other types of prescription drug medication to control the pain caused by their disabilities. There is also some level of accommodation required for employees who have developed addictions to marijuana. However, limits exist in this regard.

As part of an employer’s duty to accommodate, employers must obtain the employee’s medical authorization to use marijuana, engage in dialogue with the employee in order to understand his or her limitations (including any risk of impairment) and canvass alternative options for accommodation. An employer’s response to a request for accommodation will vary based on the particular needs of the individual employee and the type of work he or she performs. All of this must be weighed against health and safety risks to determine whether putting an accommodation in place will create undue hardship for the employer. 

For an employee in a safety-sensitive position, health and safety considerations may require an employer to modify the employee’s role such that they are no longer performing safety-sensitive duties or to put the employee on a leave of absence, unless such accommodations cause undue hardship for the employer.

A similar process as above should be followed in the case of marijuana addiction, except in this situation an employer may need to be more proactive as an employee may not be forthcoming as to their needs or may not recognize that they have an addiction.

Despite an employer’s obligation to accommodate those employees who use medical marijuana, the fact that these employees must use marijuana does not entitle them to be impaired while they are on duty, nor can such an employee compromise the safety of co-workers or put him or herself in harm's way. 

2018 is a year of change for Canadian workplaces. The changes to the legal status of marijuana will create unique and unprecedented challenges for the vast majority of employers. To help navigate your way through all issues outlined above, have an employment lawyer guide you at every step of the way. 

If you have any questions or would like further information regarding marijuana use by employees, accommodation of employee illness and disability, and how legalized marijuana may impact your business or workplace, please contact managing associate Alex Lucifero at Samfiru Tumarkin LLP by telephone at 613-569-4470 or by email at alex.lucifero@stlawyers.ca.

Alex was recently featured on CTV Morning Live Ottawa for a special segment about employers’ rights and responsibilities regarding marijuana and the workplace. Watch Alex’s latest interview with Ottawa’s #1 morning show below.

Alex Lucifero leads Samfiru Tumarkin LLP’s Ottawa office as its managing associate, providing sound advice to both employers and employees on all aspects of labour and employment law, including wrongful dismissal, severance packages, terminations and workplace harassment.

Stay up-to-date on workplace rights in Ontario by watching Employment Hour in 30, Canada’s only TV show dedicated to workplace rights. Visit ottawaemploymentlawyers.ca for more information about Samfiru Tumarkin LLP.

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