Marijuana Legalization: Helping Employers See through the Smoke

Understandably, Canadian employers have been asking what legalization means for their workforce. Will their employees, now be legally allowed to eat marijuana for breakfast if they so choose, transform once productive workplaces into scenes out of a Cheech and Chong movie?

Luckily, despite what some fear-mongering pundits have predicted, the results of legalization will not result in a zombie-stoner apocalypse—so long as employers take the time to make some prudent modifications to their Drug and Alcohol Policies.

Indeed, while the new legislation marks a seismic shift in how recreational marijuana users are treated by the law outside of work, there is no change to the longstanding legal power of employers to explicitly prohibit most employees from becoming intoxicated on the job, and to even terminate their employment if they do so.

In fact, employers even have significant powers to restrict the activities of most employees off the job, including smoking marijuana (more on that later).

The bottom line is that as an employer, you continue to have the right to design the Drug and Alcohol Policy that makes sense for your workplace, so long as certain accommodations are met for a small minority of marijuana users.

So who can and can’t smoke marijuana during work hours?

To understand the impact of legalization on your workplace, it is helpful to divide potential marijuana users into three groups:

1. Employees to whom a doctor has prescribed medicinal marijuana to treat pain or symptoms which they are experiencing as a result of a recognized medical disability (“Medically Prescribed Users”)
2. Employees who suffer from a genuine addiction to marijuana (“Addicts”)
3. All other employees, including those who may decide to consume marijuana recreationally (“Casual Recreational Users”)

Many employers will be relieved to hear that the number of employees who have the legal right to consume marijuana during work hours, medically prescribed users, is extremely small (likely less than 1%).

Here are your basic duties to each group, and their duties to you.

Medically Prescribed Users

Section 5(1) of the Ontario Human Rights Code requires you to permit staff who suffer from a proven disability or medical condition for which medicinal marijuana has been medically prescribed to consume marijuana during the workday.

Given three strict criteria are met (see below) employees may be legally entitled to consume marijuana outside before and during work hours, including:

• On outdoor job sites
• Outside your office premises

While medical users do enjoy great legal protection, there are limitations. Not only can such users not consume marijuana indoors, but cannabis use cannot be on such a scale as to impair their work, or compromise the safety of others.

Did you know? A medical prescription to consume medicinal marijuana does not entitle employees to unexcused absences from work.

Addicts

Another small group of employees to be given special legal consideration are those who may have a real marijuana addiction.

Such users have no legal right to consume marijuana during work hours (including during lunch breaks) but under the Ontario Human Rights Code, you are also not permitted to terminate such employees for their marijuana use.

You are, however, legally entitled to insist on their entering a rehabilitation program to overcome their addiction, on pain of eventual dismissal.

Perhaps most important, you may require within your Drug and Alcohol Policy that such employees disclose their addiction, particularly if they are in a safety sensitive occupation.

All other employees (including casual marijuana users)

The vast majority of your employees will be those who are neither medicinal users nor addicts, but who may choose to use marijuana on a casual basis. This is where your Drug and Alcohol Policy can be the most flexible or inflexible, depending on the needs of your workplace.

Indeed, even after enactment of the new legislation, the law permits employers to prohibit employees who do not suffer from a disability or medical condition not only from consuming marijuana at work, but also from consuming at home for recreational purposes.

While we would not necessarily advise such a far-reaching policy (which would be both difficult to enforce and potentially lead to mass resignation in some cases) the point is that the there are no legal protections for recreational marijuana consumers, such as to preclude employers from actively discriminating against cannabis consumers in the privacy of their own home.

How to move forward?  

The most important thing for you as an employer to do is to develop a clear Drug and Alcohol Policy that takes into account the recent legislation changes.

Such a policy should clearly answer such questions as:

• When, if ever, it is acceptable to consume marijuana at work and/or outside of work?
• Where, if at all, such marijuana consumption can occur?
• The disciplinary consequences for contravening the Policy
• What, if any, drug testing may be conducted to police the Policy?
• The extent of an addict’s obligation to self-report, including the disciplinary consequences for failing to self-report and then becoming involved in a workplace accident
• What medical evidence entitles an employee to be treated as a medically prescribed user of marijuana?
• What obligations do medically prescribed users have to cooperate with your organization in disclosing relevant medical information about their condition?
• What degree of drug intoxication is unacceptable for (a) safety sensitive jobs and (b) for all remaining jobs?

Note: If you need assistance in updating your Drug and Alcohol Policy or the termination provisions of your employment agreements, our Employment Law Group would be happy to help. Contact us here.

Five Takeaways 

1. Only employees who are Addicts or Medically Prescribed Users have any legal protections to consume marijuana.
2. Medically Prescribed Users (who meet strict conditions) must be allowed to consume marijuana during working hours so long as it is outdoors.
3. Addicts can be forced to self-report and to seek treatment, and if they fail do so can be dismissed.
4. Recreational Marijuana Users have no legal right to consume marijuana at work, and depending on the Drug and Alcohol Policy, can even be terminated (with notice) if they get caught consuming marijuana outside of work.
5. You have legal duties to non-users of the drug to prevent them from coming into contact with marijuana in your workplace.

For more information, or to find out about our next seminar for employers, contact us here.