The legalization of marijuana has been hotly debated in Canada for some time now and employers are concerned about the impact it could have on the workplace.
On November 30 2016, the Task Force on Cannabis Legalization and Regulation, which was tasked with reporting on a system to legalize, regulate and restrict access to cannabis, released a framework for cannabis legalization in its report A Framework for the Legalization and Regulation of Cannabis. This report contains many recommendations on matters such as a minimum age limit of 18 to purchase, strict labelling requirements, maintaining a separate medical access framework, etc.
With the release of the Task Force’s report, it is expected that new marijuana legislation will be ready within a year, if not sooner.
While the use of marijuana for recreational purposes is currently illegal, using marijuana for medical purposes, as prescribed by a licensed physician, has been legal since 2001. Consequently, if an employee needs to use marijuana for medical purposes, this must be permitted, with proper safeguards in place.
- The employee’s request should be supported by proper medical documentation
- The employer should verify that the employee needs to ingest marijuana during work hours
- The employer should ask for information regarding the method of ingestion, the dosage and the frequency.
If it is established that the employee needs to ingest marijuana for medical purposes i.e., because of a disability, then the employer would be required to accommodate the employee up to the point of undue hardship. However, the fact that an employee is prescribed medical marijuana does not mean that the employee is entitled to be impaired while at work, or that the employer should permit workplace safety to be compromised.
Once an employer is satisfied that the request to ingest marijuana is legitimate, the employer can take steps to minimize the impact on the workplace by permitting the employee to take breaks in order to ingest the marijuana and working with the employee to determine if the marijuana could be ingested in some form other than by smoking it. If the employee is working in a safety sensitive position, the employer should make arrangements to move the employee to another position for the employee’s own safety as well as the safety of others.
Employers should also have a policy and protocols in place to deal with the use of medical marijuana. Matters that should be covered, include:
- how and where the marijuana is to be stored;
- where, at the workplace, the marijuana is to be ingested;
- a prohibition against sharing the marijuana;
- a prohibition against selling or attempting to sell the marijuana;
- what steps the employer will take if the marijuana use poses a safety risk; and
- the discipline that will be imposed if the policy is not followed.
Legalization of Recreational Marijuana
A number of employers have expressed anxiety around the proposed legalization of marijuana and what it means for the workplace.
However, a key thing to remember is that legalization of recreational marijuana does not mean that employees will have the right to use marijuana in the workplace, or to attend at the workplace while impaired. Consequently, much the same way that employers have policies around drug, alcohol and tobacco use, employers should have policies that also address the use of recreational marijuana at the workplace. A consequence of violating the policy would then attract progressive discipline up to and including termination.
However, if an employee develops a marijuana dependency as a result of recreational use, it would have to be treated in much the same way as a drug or alcohol dependency i.e., the employer would have a duty to accommodate the marijuana dependent employee up to the point of undue hardship.
Testing for Impairment
As with drug and alcohol use, employers will need to walk the line between respecting human rights and ensuring workplace safety when testing for marijuana impairment. Currently there is no test for accurately identifying the level of impairment of a marijuana user, which complicates matters further.
Given the ambivalence towards recreational marijuana, what employers must keep in mind when testing for marijuana use however, is that the purpose of such testing is to measure impairment. Any such testing should not be seen as a means of attempting to deter the use of marijuana, or to police its use.