Catherine Willson
Marijuana is expected to be legalized this summer. For employers, this does not have to turn into a Cheech and Chong movie. As with alcohol, employers can expect their employees to report to work sober and to refrain from drinking alcohol or smoking marijuana at the workplace. The legalization of recreational marijuana does not mean that employers must permit its use at the workplace or that employees can attend the workplace in an impaired state.
Employers should be setting out their expectations in written workplace policies and procedures regarding alcohol and marijuana. Safety at the workplace is paramount. Policies should be very clear that marijuana and alcohol use or impairment at the workplace will result in discipline including suspension or termination.
A safe workplace is recognized by the Courts as a legitimate and necessary goal for all employers. Drug and alcohol testing policies and programs are used by employers in safety sensitive industries. You may have heard of the TTC’s implementation of random drug and alcohol testing on its employees last year. Such testing may be discriminatory when it negatively impacts an employee based on an addiction or perceived addiction.
Drug and alcohol testing may be justifiable if an employer can show that testing provisions are required for the job. Where these policies are necessary to achieve safety, employers should design them to avoid potential discrimination. Policies should be adopted for a purpose that is rationally connected to performing the job and made in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose. The primary reason for conducting drug and alcohol testing should be to measure impairment, as opposed to deterring drug or alcohol use or monitoring moral values among employees.
The Ontario Human Rights Code requires employers to accommodate employees with drug or alcohol addictions to the point of undue hardship. The use of medical marijuana by an employee will be permitted in the workplace under this duty to accommodate, on a case-by-case basis, taking into consideration the employee’s medical needs and the nature of the workplace from a health and safety perspective. An employer may request medical proof of prescription and medical documentation to support the fact that the employee must use medical marijuana during working hours.
In short, the use of recreational marijuana will be treated like the use of alcohol in a workplace. An employer would be wise to have a policy educating employees on the company’s rules regarding permissible use, if any. Medical marijuana is a different creature and should be treated more like a prescription drug. An employer must balance workplace safety with its duty to accommodate a legitimate medical need of an employee or an addiction to drugs or alcohol.