The upcoming legalization of recreational marijuana has some employers afraid that their employees will soon be taking smoke breaks of a different kind, with corresponding negative impacts on productivity. Employers should rest assured that they are able to set parameters around marijuana use at work; however there are important distinctions between medical and recreational consumption.
Some employers have already had exposure to employees who are prescribed medical marijuana. The need for the medication triggers disability-related protection under Ontario’s Human Rights Code. This means that the employer is able to request information on when the employee will be under the influence and how it might impact upon an employee’s ability to perform his or her role. The employer and employee should work together to come up with an appropriate accommodation plan to allow the employee to receive treatment and work at the same time, if possible, with safety a critical consideration. If the drug may be administered as effectively in a more discrete fashion than smoking, such as through oil or consumables, an employer may be able to request that it be taken in that manner, if it must be taken at work. An employer may assign certain tasks while an employee is under the influence and others when he or she is not. This is similar to the approach an employer would take if an employee was prescribed any other drug that causes impairment, with the added complication of smoking being prohibited indoors.
Excessive use of marijuana, with or without a prescription, may be indicative of an addiction. An employer cannot simply dismiss an employee for use during work hours if there is suspicion or knowledge that an addiction is at play. At the same time, the employer is not required to keep an employee actively in his or her role while impaired. In all cases of medical marijuana treatment and potential addiction, obtaining information on limitations from an employee’s doctor is critical. An employer may need to grant a leave of absence without pay for an employee to seek treatment.
Setting Ground Rules
As for recreational use, an employer is fully justified in creating rules that state that either consuming marijuana during the course of the workday or attending at work under the influence is prohibited, unless a medical need has been communicated. Currently, such rules about no impairment at work are expected and commonplace in the context of alcohol consumption. An employer may discipline a recreational marijuana user for breaking this rule, but must take precautions to ensure that no addiction is at play.
Further, an employer may make a rule requiring an employee to disclose if he or she arrives at work under the influence to ensure safety. The employer may be justified in imposing discipline for this breach, even if it arises from an addiction or medical prescription that has not been disclosed.
Drug testing in the workplace is generally offside human rights legislation, unless the role is safety-sensitive, the employer has good reason to suspect an employee’s impairment, and the employer has access to testing that will produce an immediate result about current impairment.
Policies and Training
A better approach is to ensure that all parties are aware of their rights. Employers are advised to create Drug and Alcohol Use policies and Human Rights policies and orient their employees to them. Employees are encouraged to be open about addictions and medical use to avoid discipline.
Given the impairment caused by cannabis, it is unlikely that marijuana fumes will regularly waft out of workplace smoking sections once the substance becomes legal. This does not mean that workplaces won’t be touched by the drug at all, so it is wise to contemplate its presence in advance.
Alayna Miller practices Employment law at Mann Lawyers LLP, a full service law firm operating in Ottawa’s Hintonburg area. This article is not intended to provide legal advice. Should you require legal advice, please contact Mann Lawyers LLP at 613.722.1500 or visit mannlawyers.com.