May 19, 2017

Toking Resistance: Minimizing Marijuana in the Workplace

Like it or not, recreational marijuana will be legal in Canada in little more than a year. To many British Columbians, the impending legalization of marijuana may appear to be little more than a mere formality. After all, it’s difficult to walk a block or two in Vancouver without running into one of its completely illegal (yet fully operational) marijuana dispensaries. Nevertheless, the proposed Cannabis Act will indeed cause a significant change in the legal landscape of cannabis use.

Employers should be prepared well ahead of time to meet the legal challenges presented by the legalization, and increased accessibility, of marijuana.

Under the proposed Cannabis Act, recreational marijuana will become legal on July 1, 2018. The Cannabis Act will permit Canadians who are 18 years or older to:

  • possess up to 30 grams of cannabis;
  • share up to 30 grams with other adults;
  • purchase dried or fresh cannabis from a provincially licensed retailer;
  • grow up to 4 cannabis plants; and
  • make cannabis-infused food and drinks.

Although these provisions may be tweaked in the run-up to July 2018, what is clear is that legalization is coming very soon and will provide employees in all industries with much easier access to marijuana.

Recreational Marijuana

First of all, it should be of some comfort to employers that the distinction between recreational and medical marijuana will remain a meaningful one. Even though an employee will be entitled to enjoy recreational marijuana in his or her spare time, the proposed legislation in no way permits impairment in the workplace. As an employer, you are still required by law to maintain a safe work environment. This obligation extends to drug use in the workplace.

Regulation 4.20 (a very aptly numbered provision) of the British Columbia’s Occupational Health and Safety Regulation states:

The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or substance so as to endanger the person or anyone else.

 In this sense, recreational marijuana will be akin to alcohol. As you already know, it is perfectly legal for anybody to have a drink or two on their own time and in their own home. However, as an employer, this doesn’t mean you would start letting your employees do shots on their coffee break. The same approach extends to impairment caused by marijuana.

It’s important to realize that employers are not merely permitted to prevent workplace impairment, but are legally obligated to do so. In fact, an employer’s failure to provide a safe workplace may lead to criminal charges. Section 217.1 of the Criminal Code states:

Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task

The liability to the employer will often vary depending on the nature of the workplace. After all, from a safety perspective, an impaired crane operator is likely to be a greater concern than an impaired accountant. Nevertheless, all employers in British Columbia must be aware of their duty to prevent impaired employees from endangering themselves or others in the workplace.

Medical Marijuana

Despite the importance of maintaining a safe work environment, employers must at the same time be wary of adopting an overly heavy-handed or rigid approach to preventing impairment. Otherwise, employers run the risk of inviting a complaint under British Columbia’s Human Rights Code.

The risk stems from the fact that employees are entitled to use marijuana for legitimate medical purposes. Under the Human Rights Code, mental and physical disability is a prohibited ground of discrimination. As a result, if an employer were to dismiss or otherwise adversely treat an employee because of that employee’s use of medical marijuana, this could be grounds for a claim in discrimination.

Consequently, employers must step very carefully where medical marijuana is involved. If there is indeed an underlying medical condition for which marijuana has been prescribed by a doctor, the employer has a duty to accommodate that employee’s use of medical marijuana as they would any other prescription drug. This duty to accommodate must be met in good faith. For example, even if an employer determines that an employee’s use of medical marijuana makes them ineligible to continue their safety-sensitive position, the employer should consider whether there are alternative positions for that employee for which safety is less of a concern.

At the same time, a prescription for medical marijuana does not give an employee license to smoke in the workplace, arrive to work late without permission or compromise the safety of the workplace. The employer must take care to balance their own legal responsibilities with the right of the employee to use medical marijuana.

Finding a Balance

From a legal perspective, the impending legalization of recreational marijuana does not relieve employers from the need to perform a difficult balancing act. On the one hand, employers must ensure that they are maintaining a safe work environment. On the other hand, they must avoid infringing the rights of employees who consume marijuana for legitimate medical reasons. The right approach will often depend on the nature of the individual workplace and to what degree safety is a concern.

As an employer, what practical steps can you take in order to strike the right balance?

 

1. Create a written policy

It is crucial to have clear, written policy that is effectively communicated and consistently enforced. You should prepare written policies and ensure that managers and regular employees are familiar with its terms.

 

2. Spell out the consequences

Everyone in the workplace should understand that you are dedicated to maintaining a safe workplace. As a result, it should be clear to each employee what will happen if he or she is unacceptably impaired in the workplace. The consequences could include progressive discipline or perhaps even termination.

 

3. Require proof of a medical prescription

You should insist that any prescription relied on by the employee is provided by a recognized and legitimate healthcare professional in accordance with the existing laws. After all, if an employee is alleging that he or she is using medical marijuana, he or she is required to disclose the nature of the disability as well as the medical authorization to use marijuana.

 

4. Train your staff

A policy is little use to anyone if it is not enforced properly. You should ensure that their managers and supervisors fully understand the policy. Moreover, they must know how to recognize and address marijuana-related impairment in the workplace.

 

Scott Payne is a lawyer with CBM Lawyers. To learn more about employment law or to schedule a consult with Scott, please contact us at 604.533.3821.