Up in smoke: Preparing for the presence of marijuana in the workplace

By Miriam Anbar

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.

Bill C-45, the government's marijuana legalization bill, was passed in a historic Senate vote (52-29) on Tuesday, June 19, 2018, resulting in subsequent confirmation from Prime Minister Trudeau that marijuana products will be legally consumable across Canada starting on Oct. 17, 2018.

The legislation has prompted employers and employees alike to question what impacts marijuana consumption will have on their workplace. In fact, in a recent report by the Conference Board of Canada , over half of Canadian workplaces are concerned about the implications legalization will have on their workplaces, the main concern revolving around workplace safety.

Employers already have a duty to accommodate employees who have been prescribed medical marijuana. This duty to accommodate is akin to that provided to employees who have been prescribed any other impairment-inducing pharmaceutical prescription. Employers in such situations need to be mindful of both the duty to accommodate and the duty to foster a safe work environment for their employees.

Unfortunately, the balance between these duties has been difficult to achieve in many circumstances and case law has provided little in the way of guidance to clarify how they will change in the face of marijuana legalization. The duty to accommodate requires a respectful approach to an employee's disability that places a responsibility on employers to eliminate disadvantages and barriers faced by their employees up to the point of "undue hardship."

Employers can sufficiently address this duty by considering each request individually and assessing all potential options for accommodation. Engaging in a respectful dialogue with an employee and working to gain an understanding of their limitations is an excellent way to begin to accommodate a disability and find a viable solution that is cognisant of important cost and safety factors.

Health and safety concerns often operate as a limit of an employer's duty to accommodate. Recent case law on the subject reflects that the fulfillment of the duty requires a consideration of risk, cost, safety and creativity in reaching a viable solution.

Employers who manage employees working in "safety sensitive" positions can begin to take proactive steps to address their duty to facilitate a safe work environment by implementing policies that, for example, specifically outline positions as "safety-sensitive" and thereby require an employee to disclose their prescribed use of any impairment-inducing medication.

Employers must also consider different possibilities for sufficient accommodation that will not sacrifice workplace safety. Ultimately, accommodation requires that both the employer and employee put forth a reasonable effort to find a viable solution (not necessarily a perfect solution) that is mindful to the needs of the affected employee and the protection of a safe work environment.

As legalization of recreational marijuana nears, employers are increasingly concerned about the potential for impairment in the workplace. The difficulties of assessing impairment caused by usage of cannabis products has been an arduous challenge for law enforcement and policy-makers alike. As a result, a main challenge for employers will be finding a viable way to address the use of marijuana during work hours.

While the courts have yet to provide a clear mandate to this sensitive question, there are basic ways that employers can protect themselves and their work environment from potential safety hazards. In terms of policy, the government of Ontario has already stated that recreational use of marijuana while at work is prohibited. Moreover, early indications are that the usage of marijuana will likely be handled in a similar manner to that of alcohol in the workplace.

As the number of registered medical marijuana users continues to rise, employers are faced with new challenges regarding the safety of their workplace. Employers can prepare themselves by taking positive steps to implement or update workplace policies including both accommodation and drug and alcohol policies. These policies should address workplace safety and request sufficient disclosure of any prescribed use of impairment-inducing medication.

It is also imperative that employers and managers are properly trained on how to handle these issues. In such uncertain times, it is paramount that employers seek assistance from HR teams or legal advisers to ensure that they are taking the correct steps. As always, the best way to protect your workplace is to be educated, proactive and receive proper advice.

Miriam Anbar is an employment lawyer at Rodney Employment Law where she handles a broad spectrum of workplace matters, including but not limited to wrongful dismissals, employment standards, human resources law and human rights. Law student William Quaglietta helped with the research and writing of this article.

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The Lawyer's Daily

This article was originally published by The Lawyer's Daily -- providing Canadian legal news, analysis and current awareness for lawyers and legal professionals who need a real-time view on the shifting legal landscape.