What employers need to know to prevent their workplaces from going to pot
With the imminent legalization of marijuana, some employers in the construction industry worry their workplace cultures – and safety in particular – will go to pot, so to speak. Before the legalization takes effect, it is important employers get all the facts about the law and learn how they can create policies that will help maintain a safe workplace.
The legalization of marijuana is expected to take effect as early as July 1, 2018. Once legalization takes effect, adults will be permitted to purchase, possess, distribute and even grow marijuana (to a certain extent).
Under the new regime, the federal government will oversee the production and manufacturing components of marijuana legalization, while the provinces and territories will be responsible for further regulations and restrictions, such as increasing the minimum age, lowering possession limits or restricting places in which consumption is acceptable.
In this changing landscape, employers are left in a haze, wondering what this will mean for their workplaces. What can and can’t they do in terms of controlling their employees’ use of marijuana? Can they ask their employees to submit to random drug testing? How do they test for marijuana impairment?
It appears as though the federal government does not intend to impose any restrictions specific to regulating marijuana in the workplace. Accordingly, employers will be responsible for regulating the use of marijuana in their workplaces, and should consider whether their current workplace policies dealing with drug use and impairment require adjustment. The shortening window of time prior to cannabis legalization is also a good opportunity to ensure that existing workplace policies are commensurate with the legal principles already in place regarding drug or alcohol impairment in the workplace.
Drug and alcohol testing
Employers are entitled to prohibit impairment from marijuana in their workplaces. Generally, no employee can be subjected to random, unannounced drug testing. That being said, an employer may require drug testing of an employee where they have reasonable cause to do so. An employer may have reasonable cause where an employee exhibits behaviours or the facts suggest that they may be impaired by drugs at work.
Employers may incorporate provisions requiring drug (or alcohol) testing following an incident, accident or near miss in the workplace into collective agreements or employment contracts. Such testing would be justified provided there is some information about the incident and the employee’s connection to or role in the incident that suggests impairment may have been a factor.
Such policies will be especially relevant in safety sensitive workplaces such as those involving machinery or heavy equipment. Given that the purpose of workplace drug testing policies is to reduce workplace accidents, employers operating in dangerous work environments should seriously consider adjusting their policies to include impairment from recreational marijuana use while at work. It is important to recall though, that even in safety sensitive work environments, random drug testing or termination due to drug usage is still unjustified in the absence of reasonable cause.
Employers should be aware that a zero-tolerance approach to drug use may not be legitimate as it is inconsistent with the principles of just cause and progressive discipline, and may also violate human rights requirements.
Testing methods
Another cause of concern for employers will be identifying appropriate and accurate methods of testing for marijuana use. To date, the recognized methods of testing include the cheek swab method, breathalysers and urinalysis. Each of them has their advantages and disadvantages with respect to immediacy of results (or lack thereof) and accuracy.
Several labour arbitrators and decision-makers in the human rights field have concluded that a positive drug test on its own is not conclusive of actual impairment and does not, in itself, constitute just cause for discipline or discharge, depending on the circumstances of the case.
Off-duty conduct
Employers must exercise caution in terms of regulating the off-duty conduct of employees. Courts have found that it is unreasonable to impose general policies that provide for discipline or discharge if employees engage in recreational marijuana use while off duty or on vacation. Such policies are seen as regulating the morality of employees and will not be justified.
On the other hand, some courts have held that if there is a sufficient nexus between the off-duty conduct and the employee’s responsibilities, discipline may be justified. For example, if an employee in the transportation industry is charged with impaired driving while off-duty, that may be cause for disciplinary action.
Accommodation
The issue of accommodation becomes relevant where an employee uses medicinal marijuana or can establish that they have an addiction to marijuana.
If an employee uses medicinal marijuana on the recommendation or advice of a medical professional, the employee may be treating a condition or illness that would be considered a physical or mental disability. The employee needs to provide medical documentation to support their use of medicinal marijuana. An employer who does not allow the employee to use medicinal marijuana in the workplace would be engaging in discrimination, unless they can establish a bona fide occupational requirement, and would be required to accommodate the employee to the point of undue hardship.
Given that the purpose of workplace drug testing policies is to reduce workplace accidents, employers operating in dangerous work environments should seriously consider adjusting their policies to include impairment from recreational marijuana use while at work.
As such, employers should consider their current workplace accommodation policies and establish a clear distinction between medicinal versus recreational marijuana use. These policies should offer the flexibility to craft individualized accommodation plans for employees. Essentially, workplace policies respecting medical marijuana should be similar to policies addressing prescription medication in the workplace. Think of an individual with diabetes, who needs to take insulin shots several times a day. In order to accommodate an employee who uses medicinal marijuana, an employer may need to allow several “smoke” breaks a day. The specifics of such breaks should be addressed in individual accommodation plans.
An employee who uses marijuana recreationally may not necessarily be able to rely on statutory or common law accommodation protections; however, accommodation will be required under human rights legislation if the employee is able to prove an addiction to marijuana amounting to a disability. If an addiction exists, it is a disability requiring accommodation to the point of undue hardship. Accommodating an employee in such a situation may become an issue if it begins to significantly interfere with the employee’s duties or raises safety concerns.
Preparing for legalization
In order to prepare for the legalization of marijuana, employers should consider working with a lawyer to review their current drug, alcohol and accommodation policies. Employers will need to be clear about the ramifications for the use or possession of marijuana in the workplace. Definitions such as “drug,” “impairment” and “under the influence” will need to be adjusted to include marijuana use. The procedures regarding the use of medicinal marijuana should also be clearly communicated.
The consequences and disciplinary procedures for breaching the policies respecting marijuana usage should be communicated to employees, keeping in mind that employees cannot generally be subject to random drug testing or immediate termination for marijuana use. Policies should clearly identify behaviours that will not be tolerated. Employers should also keep in mind that principles of progressive discipline and accommodation still apply to marijuana usage, and zero-tolerance policies will not be acceptable. Policies that are supportive and offer other options and flexibly provide for individualized accommodation plans before discipline is imposed will be more likely to be upheld.
Finally, employers should be cognizant of the changing legal landscape and keep apprised of any updates or changes in federal or provincial legislation. There will be a learning curve while employers adjust to the legalization of marijuana, making clarity and communication key when dealing with the changes in the workplace.
Jenna R. Seavers is an associate of Fillmore Riley LLP who practises primarily in the area of civil litigation. You can reach her at 204-957-8365 or jseavers@fillmoreriley.com. This article provides a brief summary of employers’ obligations respecting the legalization of marijuana. The legislation is still in process and specific questions about its applicability to your workplace should be discussed with your lawyer. 
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