Legalization of Recreational Marijuana in Canada – Considerations for Employers

The impending legalization of marijuana for non-medical use in Canada should prompt all employers to consider their existing workplace policies and procedures. Do you have a drug and alcohol policy in your workplace? If so, does that policy need to be updated due to changes in the law regarding recreational marijuana use? If you do not currently have a workplace drug and alcohol policy, do you need one?

Legalization is not a “Free Pass” for Employees

Employees have never had the right to work while intoxicated or impaired due to drug or alcohol use. Nothing about that will change when the recreational use of marijuana becomes legal in Canada. The use of recreational marijuana should be treated by an employer like any other controlled substance, such as alcohol, when it affects employee performance.

Do you have a workplace drug and alcohol policy? Do you need one?

All employers can benefit from having a drug and alcohol policy. The usefulness of such a policy is not restricted to employers with larger workforces, or only to employers who have workers in safety sensitive positions. Any workplace, regardless of the size or the work performed, may experience occurrences of employee impairment while on duty due to their use of either prescription or recreational drugs or alcohol. When faced with such situations, a workplace drug and alcohol policy can provide valuable structure and certainty for all parties on the next steps to be taken by the employer.

Policy Content

A workplace drug and alcohol policy can address a number of issues, including:

  • Prohibiting employees from reporting to work under the influence of any type of alcohol or drug.
  • Defining what constitutes “impairment” or being unfit to report to or remain at work in your workplace.
  • Drug testing. This may not be available to all employers or in all situations, and must be considered in the specific circumstances of your workplace.
  • Repercussions for an employee who is found to be impaired or under the influence of alcohol or drugs (or their after-effects) while at work, including potential disciplinary actions.
  • Disclosure by employees of any medical treatment they are receiving (i.e. taking of prescribed medications), to enable the employer to confirm the employee’s ability to safely perform their duties while using prescribed medication(s) under the care and supervision of their physician.
  • Employee substance abuse/addiction problems. An employee’s drug or alcohol use may be the result of a substance abuse or addiction problem, which in turn may require a workplace accommodation rather than a disciplinary response from the employer should the employee violate the workplace drug and alcohol policy.
  • The duty to accommodate. An employer’s drug and alcohol policy (or related workplace accommodation or illness policy) should address the potential need for a workplace accommodation and/or treatment in the event an employee suffers from a medically confirmed illness, substance abuse or addiction problem. Use of alcohol or drugs, including marijuana (whether prescription or recreational), may result in a physical dependency or addiction which can constitute a disability under applicable human rights legislation. This may in turn trigger the duty to accommodate for an employer under human rights, employment standards and/or occupational health and safety legislation. You may already have a specific policy that speaks to workplace accommodations and how those will be managed – if so, that policy should also be reviewed to ensure it is consistent with any drug and alcohol policy you have or are developing.

Medical Marijuana – More Considerations for Employers

A workplace accommodation for medical reasons may require an employer to deal with employees whose treatment plans involve the taking of prescription drugs, which may include accommodating an employee’s use of prescribed cannabis and/or marijuana. The prescription of such drugs is already legal in Canada so the use of marijuana or cannabis for medical purposes is not new, though it may still be rare in the experience of many employers.

Your employment policies should reflect your obligation to accommodate the use of prescription medications in the workplace, which can include the medical use of marijuana or cannabis where that use is supported by appropriate medical evidence. While the requirement to accommodate (to the point of undue hardship) will apply regardless of the specific prescription medication an employee is taking, in the case of medical marijuana your accommodation assessment and plan should address the need for sufficient detail as to the frequency, volume and method of ingestion relating to the prescribed medical use of medical marijuana or cannabis.

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Employers are required by law to protect the health and safety of their employees in the workplace. You can have, and enforce, a zero-tolerance policy against intoxication or impairment in the workplace. You can also prohibit the use of recreational marijuana during work hours (just as you do with alcohol), and prohibit attendance at work while impaired or unfit to work.

Review your existing workplace policies. Ensure they set out your expectations for your employees and the framework in which drug and alcohol use will be addressed in your workplace. Need assistance? Our Employment Law team is ready to help you in developing or updating your policies to address the needs of your specific workplace. Contact us for more information.