Notwithstanding that recreational marijuana has been legal in Canada for seven months now and medical cannabis, alcohol and other intoxicants a lot longer, employers still have many fears and misconceptions about how its employees’ use of marijuana both at work and at home may negatively impact their workplaces. This article addresses many of these concerns so as to clear the air on employees use of marijuana as it relates to the workplace as an ounce of prevention equals a pound of cure.
Can cannabis be smoked or vaped in my workplace?
No. For two reasons. Under the Cannabis Act, cannabis (marijuana) cannot be smoked or vaped in workplace designated smoking areas regardless if the marijuana is medical or recreational. In Ontario it cannot be smoked or vaped in the workplace as its second-hand smoke is just as dangerous as tobacco’s and the Smoke Free Ontario Act and the Occupational Health and Safety Act apply.
What is the legal age to consume cannabis?
Under the Cannabis Act every jurisdiction gets to decide its legal age. Ontario set it at 19 – the same age as alcohol.
Can employees be impaired at work?
No. The “right” to use cannabis will never override the right to maintain a safe workplace.
It is illegal to be impaired at work in a manner that prevents an employee from being able to meet or maintain acceptable levels of safe and productive performance. It remains the case that any intoxicant, including prescription drugs such as medical marijuana, regardless of human rights laws, does not entitle an employee to be impaired at work and compromising their or others’ safety. The rules have not changed.
That being said, those prescribed medical have the same rights as any other employee prescribed medication by their physician so long as it doesn’t violate other laws. Remember, not all use of marijuana, for example topical application of CBD oils, results in impairment.
Can employers set rules for the recreational use of marijuana during working hours?
Yes. You have the right to set rules for recreational use of cannabis in your workplace, including banning the same at work functions and offsite work or for reimbursement under your expense policy in the same way you do for alcohol. You can enforce these rules through use of your progressive discipline policy except where an employee’s use of marijuana is medical, then you must accommodate disabled employees.
What does accommodation of medical marijuana involve?
As with all accommodation measures under the Human Rights Code, it depends on the individual circumstances of the employee. It could include: altering the employee’s schedules, including break schedules, and duties (e.g. removing safety sensitive duties). Do not stigmatize or stereotype by assuming that all marijuana use is as a result of a disability (i.e., an addiction). Doing so opens you up to liability and obligations that you would not otherwise have.
Are there limits on employers’ obligations to accommodate?
Yes. Employers must accommodate “to the point of undue hardship” under the Code. In doing so you are entitled to confirmation of disability as well as the actual need to use of marijuana where it impacts the workplace, and to work with employees on a reasonable solution.
Does accommodation of medical marijuana entitle employees to be absent or late?
No. Medical marijuana use must be accommodated in the same way as any other employees prescribed medication or who have an addiction disability.
Can employers engage in pre-employment or during employment drug-testing?
No as a general rule as there are very limited circumstances where it is permissible.
What do you need to do to protect yourself from liability?
Be knowledgeable and prepared. Make sure: (1) you know your legal obligations and set aside your preconceptions and beliefs about marijuana use; and (2) your employees know their obligations legally and under your workplace policies. Revisit your policies and training programs to ensure that they are up to date, establish expectations and accountabilities and train all employees on understanding: (a) signs of impairment or intoxicant abuse at work; and (b) how to properly address such issues, including who to go to for guidance or assistance if an issue arises.
Sheryl Johnson is a Partner at Sullivan Mahoney. She has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment, labour, administrative and employment related privacy, cannabis, Aboriginal and Indigenous law as well as in civil litigation. She is the author of Sexual Harassment in Canada: A Guide for Understanding and Prevention. Email: email@example.com