Marijuana in the Canadian Workplace
by Peter Straszynski
While the possession of marijuana currently remains unlawful in Canada under the Controlled Drugs and Substances Act, its use for medical purposes is permitted under the Regulations to the Act. The Canadian government has also introduced legislation which proposes to de-criminalize marijuana in Canada as early as July 1, 2018, for non-medical possession and use.
What does this mean for Canadian employers?
In the context of non-medical use, marijuana (whether legal or not) can still be treated in substantially the same way as the use of alcohol under a workplace drug & alcohol policy. Employers will continue to have the right to prohibit the use of marijuana during work hours, and to further prohibit attendance at work while impaired. Breach of these prohibitions can properly be made the subject of progressive discipline, and in appropriate cases could result in termination of employment for just cause.
Where an employee is “addicted” to marijuana, however, such addiction will likely constitute a “disability” under provincial and federal human rights legislation, triggering the employer’s duty to accommodate the employee’s disability to the point of undue hardship. There have already been many cases in the unionized environment where employers have been required to reinstate employees fired for drug use, based on the employer’s failure to accommodate the employee’s substance addiction as a disability.
With the advent of “medical” marijuana use, the situation for employers has become further complicated. On the one hand, employers need to have policies in place permitting the medical use of marijuana in the workplace where supported by appropriate medical evidence. On the other hand, employers continue to have the right to prohibit impairment on the job, particularly in safety sensitive positions. It will not always be easy to balance these competing interests.
Unlike the case with alcohol, while there are tests that can determine recent use of marijuana, there is currently no accurate and reliable clinical test to determine levels of impairment. Determining actual impairment may pose one of the most significant challenges facing employers in managing both medical and non-medical use of marijuana.
Pro-active employers will update their policies to address issues relating to both the medical and non-medical use of marijuana in the workplace. Where an employee claims medical need for marijuana, employers should have protocols in place requiring proof of prescription, together with specific information regarding the frequency, volume and method of ingestion
relating to such medical use, as well as the anticipated impairment and restrictions on ability to perform job functions, if any, all for the dual purpose of assessing impairment and structuring appropriate accommodation.