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:
- 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”)
- Employees who suffer from a genuine addiction to marijuana (“Addicts”)
- 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.