Not since the abolishment of prohibition has Canada experienced widespread legalization of a narcotic like marijuana. Naturally, there are many questions stemming from employers and their workers as Canada officially rolls out its legalization of cannabis.
Peter Hertz practices employment law as a partner with Waterloo law firm, Duncan Linton LLP. He says many companies proactively revised their codes of conduct to include stipulations about marijuana use.
“One thing we’ve encouraged people to do is look at their policy relating to the recreational use of alcohol,” Hertz said. “Look at how you treat alcohol for guidance as to how you’re going to treat recreational marijuana.”
Possession of cannabis in Canada is no longer a criminal offence, which leaves many employers wondering what responsibility they have under these new rules. Hertz advises that enforcing a strict zero-tolerance policy in the workplace could become problematic.
“If you say ‘we’re going to drug test and everybody with marijuana in their system is going to be dismissed’, that blanket policy could have a discriminatory effect on someone who is addicted or someone who is a medicinal user,” Hertz said.
“So much of this is fact-specific and context-driven. A bus driver or an emergency responder may be treated differently than somebody washing dishes in the back at a catering job. You may be found to be discriminating against someone who has an addiction or discriminating against someone who has a perceived addiction.”
For Canadians who already have a marijuana prescription, little changes for them with these new laws in place. Yet, Hertz believes it’s beneficial for employers to have an open dialogue with their employees if workers have a medicinal cannabis prescription.
“We advocate employers to encourage their employees that may be medicinal users to self-identify so they can be accommodated and issues related to their use and consumption can be managed in a thoughtful way,” Hertz said. “By the same token, I would encourage employees that have a medical need to identify that to their employer, so there are no surprises in the future.”
Businesses are free to prohibit non-medicinal cannabis consumption on the clock, but Hertz notes that workplaces should help to accommodate sanctioned medicinal marijuana users in an appropriate manner.
“A medicinal user is entitled to have the employer make reasonable accommodations for that disability or medical need. It really comes down to the circumstance of the workplace, but also the legitimate needs of the employer.”
One grey area under this new legislation is the issue of impairment. In the case of alcohol, it’s simple to determine someone’s level of intoxication. The degree of impairment after consuming marijuana is somewhat subjective to the naked eye.
Hertz reminds employers to be diligent and recognize the signs and symptoms of impairment. “If you suspect someone of being impaired, you should take appropriate measures. Realistically, employers should have a policy in place for investigating suspected incidents of impairment,” Hertz said. “Employers should take action to prevent dangerous situations or prevent someone who they suspect of being impaired from carrying out safety-sensitive tasks.”
Conversely, employees who fear being subjected to random drug testing can rest assured they have rights, as well. Hertz says drug testing is appropriate in certain situations, but there is no legal blueprint for drug testing in most workplaces.“There is no comprehensive legislative framework for workplace drug testing. If that’s the road you need to go down, it’s something a lot of thought should be given to and you should consult with a lawyer and seek professional advice.”