The Minery has sat down with Legal Lead Advisor, Alexandra Williamson from the firm e2r Solutions to discuss the legalization of marijuana and how it will affect businesses’ moving forward.

We would like to take this opportunity to remind all of you that the information contained within this article is an overview only, and accordingly should not be relied upon as legal advice for any given situation. As always, contact your employment lawyer for any specific questions related to the information in this article, or any other topic, and for specific applicability of this topic area to your workplace.

The Minery: What is the current status for the legalization of marijuana in the workplace?

Alexandra:  Currently, 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.

After the legalization of marijuana (which the federal government anticipates will be late August or early September 2018), consuming recreational marijuana will be legal in a private residence. People will not be permitted to use recreational marijuana in any public place, motorized vehicles, or workplaces.

The Minery: What policy updates or changes in the workplace do employers need to make sure are in place by the legislation date?

Alexandra: Upon the legalization of marijuana, employers should treat recreational marijuana in the same way the use of alcohol is treated under a drug and alcohol policy. Accordingly, employers will continue to have the right to prohibit the use of recreational marijuana in the workplace, and attendance at work if impaired.  The policy should set out the any violation of the above will result in progressive discipline, up to and including termination of the employee for just cause.

When revising a drug and alcohol policy that restricts recreational use of marijuana, employers must also consider an employee’s right to use medical marijuana in order to treat an illness or medical condition. Employers ideally should already have a policy in place for addressing an employee’s accommodation request to use medical marijuana in the workplace where supported by appropriate medical evidence. This request should be treated in the same manner as any other request for a medical accommodation. The policy should make it mandatory for employees in safety sensitive positions or who operate machinery to report the use of any prescription drug (including medical marijuana) that could impact their ability to safely carry out their job functions.

The Minery: How far does the duty to accommodate extend to medical marijuana?

Alexandra: The duty to accommodate up to the point of undue hardship is required by the applicable provincial and federal human rights legislation and extends to employees using medical marijuana – in the same way an employer would be obligated to accommodate an employee using other prescription drugs. However, the duty to accommodate is not absolute or without limits.

An employee with a prescription for medical marijuana is not entitled to be impaired at work, nor is he/she entitled to compromise his/her safety or the safety of others. If an employer is concerned that an employee cannot perform their job safely, the employer should request medical documentation from the employee confirming their ability to perform the essential duties of the job in a safe manner. In the event the medical documentation substantiates the employer’s fears that the employee does not have the capacity to perform the essential duties of the job, the employer may not be required to accommodate the employee’s request to use medical marijuana (especially in a safety sensitive environment). In order to ensure an employer is meeting its accommodation obligations, the employer should consider:

1. Whether the safety sensitive position can be modified to reduce the safety concern,
2. Whether the employee can be offered  temporary work in a non-safety sensitive position (if available)
3. Whether the employee may be placed on an unpaid leave of absence.

Please consult an employment lawyer to assist you in determining in evaluating an employee’s request for accommodation.

The duty to accommodate also extends to an employee who has an addiction to recreational marijuana. An addiction to recreational marijuana may be considered a “disability” under the applicable provincial and federal human rights legislation. Employers are not permitted to discriminate based on disability, and again employers would be obligated to accommodate up to the point of undue hardship.

The Minery: What rights do employers have to send an employee home if there is suspicion that the employee is impaired?

Alexandra: Situations where an employer suspects an employee is impaired are always tricky, and are best dealt with one a case by case basis. Generally speaking, after an employer has conducted the appropriate fact gathering to support a conclusion that the employee is impaired, an employer ought to consider the safety of the employee, of his or her co-workers, of the public, and of company property. Particularly in instances where an employee works in a safety sensitive position, it may be appropriate to send the employee home or to come to a safe location in the workplace. The departing employee should be referred to available resources, such as an employee assistance plan and provided a safe transportation to get home.

An incident of impairment may very well warrant a disciplinary response. However, remember that if the incident is a result of an alcohol and drug dependency or represents a reaction to a validly prescribed medication, this may trigger an employer’s duty to accommodate.

The Minery: Do employers have the right to perform a drug test based on a suspicion of marijuana?

Alexandra: Historically, random alcohol and marijuana testing has generally frowned upon in almost every jurisdiction in Canada. With that being said, alcohol and drug testing post-incident or upon reasonable suspicion may be appropriate in very limited and specific situations in very safety-sensitive workplaces where there have been a history of issues of substance abuse.

As a friendly reminder, there are significant privacy rights considerations related to alcohol and drug testing, and in unionized environment the terms of the collective agreement must be followed.

I’d also like to note that marijuana can be detected in the bloodstream days or even weeks after ingestion. However, levels of THC (the active ingredient in marijuana) do not correspond with levels of impairment. As a result, there is currently no medical test that accurately or reliably indicates the level of a person’s impairment due to marijuana use.

Alexandra Williamson, Lead Legal Advisor at e2r Solutions.  

Alexandra strives to collaborate with employers, providing strategic advice on a diverse range of human resources and employment law matters. Her advisory services include policy and procedure development, employment contracts, employment standards, human rights and employee dismissals.