What Canada’s marijuana laws mean for your workplace
By Anne Amos-Stewart, a Vancouver lawyer with Bernard LLP
According to statistics, Canada has one of the highest rates of marijuana (or cannabis) use in the world and on October 17, 2018, the country became the second in the world (after Uruguay), and the first G7 nation to legalize recreational marijuana use nationally. While adult cannabis use is not a new issue, the question of how the legalization and (the expected) resulting increase in use will affect the workplace is uncertain. The yet-to-be-seen impacts could be wide ranging — from decreased attendance and work performance to increased insurance claims. Employers are concerned, and for good reason.
Despite the haze of uncertainties, employers can take preventative steps now to minimize future negative impacts. Much like the best defence is a good offence, proactive preparation is essential for limiting employers’ risks. Employers must properly equip themselves with the right knowledge and tools in order to navigate the budding “cannabis in the workplace” landscape as well as possible given what we currently know. Addressing this issue should be top of mind for all employers and none more so than those with safety sensitive environments — like so many in the shipping industry.
There are two main uses of cannabis: medical and recreational. Both uses are relevant to employers. Medical marijuana has been legal for some time (since 1999), and is used therapeutically quite broadly for a number of different conditions. Nonetheless, the vast majority of employers will never have been faced with a situation involving medical marijuana use by an employee. Recreational marijuana is what is newly legal and is expected to result in more frequent workplace occurrences.
Regardless of the type of use, the foremost concern for employees should be workplace safety. Employers have a legal obligation to ensure safety in the workplace. Like with alcohol or any other drug, including prescription drugs, the key is whether an employee who is using marijuana is impaired. This should be the primary reason for conducting any alcohol or drug testing — to measure impairment as opposed to deterring use. Unfortunately, there is no easy way to determine when an employee is too impaired to work appropriately or safely.
There is currently no legal definition of “impairment” or objective measure of how much cannabis is too much. The effects of marijuana use can be quite variable and the amount of THC (the active ingredient in marijuana) in a person’s system may not be indicative of impairment in the same way we understand it is with respect to alcohol. It will depend on the dosage, delivery method and frequency of use (people can become more accustomed, or desensitized, to the effects of cannabis over time), combined use with alcohol or other drugs as well as individual physiological and psychological factors. Consumption of an amount that may cause one person to become impaired may have very little effect on another.
The issue of drug testing in workplaces is already controversial and becomes even more so in relation to marijuana since current tests cannot sufficiently determine the extent of impairment. Besides this practical limitation, employers have no absolute legal right to test for impairment, especially if testing is random.
When testing is an appropriate and permissible response to a workplace occurrence is still a live issue. It is clear, however, that drug and alcohol testing will only be justifiable in narrow circumstances: where people are doing safety-sensitive work in dangerous work environments. This is due to employees’ rights to privacy. Where there is no demonstrated relationship of drug and alcohol testing to job safety and performance, or where there is no evidence of enhanced safety risks in the workplace, such testing has been found to violate employees’ rights.
Ultimately, the fact remains that testing is never a substitute for good accident prevention programs.
Employers should at a minimum have a general drug and alcohol policy in place but it is advisable to have policies which specifically address cannabis use in the workplace. Zero-tolerance policies are not recommended for every workplace, nor are testing policies. However, in safety-sensitive environments, there may be a place for them.
Employers should always use the least intrusive means of assessing impairment and fitness for work. Potential alternatives to drug and alcohol testing include cognitive and psychomotor performance tests and training supervisors or others to detect the signs of someone being under the influence of drugs or alcohol.
Note that a prescription for cannabis does not entitle an employee to smoke in the workplace. Smoking laws apply equally to marijuana. Employers should update their policies to reflect this. Employers should also ensure their scent policies cover complaints regarding employees who use cannabis.
There are two scenarios an employer may encounter with respect to marijuana use in the workplace: employees with a medical authorization and those without. Both situations could trigger an employer’s duty to accommodate the employee. This is a human rights law concept that requires employers to make changes to the workplace or the employee’s duties (or both) to enable the employee to do his or her work.
The duty to accommodate is not without limits: employers are only required to accommodate an employee to the point of undue hardship, which point will depend on the circumstances. The duty is not just related to marijuana use — it applies to all needs that are related to prohibited grounds of discrimination. In the case of marijuana, the prohibited grounds of discrimination are physical or mental disability. Such disabilities can arise in two ways: the first is a dependency on marijuana and the second is a medical condition for which therapeutic marijuana is a treatment (note in the second case, the disability is not the cannabis use itself).
If an employee has a medical authorization for use of cannabis, then the employer has an obligation to accommodate that employee to the point of undue hardship. Employers do not have an unmitigated right to prohibit employees from using medical marijuana. The situation requires a balancing of an employee’s right not to be discriminated against and the employer’s right to manage the workplace and to have the employee fit to work, as well as the employer’s obligation to maintain a safe workplace.
It becomes more complicated if the employee does not have a prescription for marijuana. The employee may nonetheless have a medical condition requiring treatment with marijuana or the employee may have a dependency — in either case, the duty to accommodate is triggered.
An employer encountered with marijuana use should gather medical information from the employee in order to determine whether the employee can properly and safely continue to work for the employer without undue hardship to the employer. The type and extent of medical information to which an employer is entitled is limited to that which allows the employer to understand the employee’s functional restrictions in the workplace. Prognosis is fair game but diagnosis is not. For example, an employer would be entitled to know the maximum amount of time an employee can stand during the day but not be entitled to know the employee has multiple sclerosis.
The right medical information will assist employers to identify, evaluate and implement accommodation options. Employers should always consult with employees (and the union if there is one) regarding accommodation.
Where there is no evidence of drug dependency or use for therapeutic purposes (which will be the case for the majority of recreational users), there is no duty to accommodate and an employer should consider disciplining an employee in accordance with its drug and alcohol policy.
Employers should keep abreast of legal developments, as well as those in testing technology, and update their policies accordingly. Seeking professional advice on how to protect themselves and their employees in the face of legalization of marijuana is always prudent.
Anne Amos-Stewart is a lawyer with Bernard LLP and can be reached at firstname.lastname@example.org.