Medical marijuana has been legal in Canada since 1999, and the recreational use of marijuana is expected to become legal in 2018. While marijuana use is not new, employers are becoming concerned about the impact that legalization and the likely increase in consumption will have in the workplace. Specific concerns include the operations of motor vehicles, decreased work performance and attendance.
The Human Resources Professionals Association recently published a white paper with the following suggestions for employers:
Employers have a duty to accommodate the disabilities of employees up to the point of undue hardship. This may include accommodating an employee’s use of medical marijuana, and even accommodating substance abuse and addictions. A zero-tolerance policy could be discriminatory against employees who use medical marijuana to treat or relieve the symptoms of a disability. Thus, zero-tolerance policies are not recommended, except where sobriety is a bonafide occupational requirement (safety-sensitive workplaces).
Employers should consider a clear drug policy that treats medical marijuana like other prescriptions, and that defines what it means to be impaired. Marijuana can be taken in may forms and doses, not all of which will affect an employee’s ability to complete their essential job duties.
Employer drug testing policies need to be kept up to date because testing technology is rapidly advancing, and a clear method of determining impairment is not yet available. Other policies should be reviewed and updated as the law develops in this area.
Earlier this year the Supreme Court of Canada ruled in favour of an employer that fired a worked who was involved in an accident with a front end loader and then tested positive for cocaine. The employer’s drug and alcohol policy required that employees disclose any dependency or addiction issues. If they did, they would be offered treatment. If they didn’t, were involved in an accident, and tested positive for drugs or alcohol, they would be fired. In this case, the employee never disclosed his drug use to the employer. After termination, he filed a human rights claim, arguing that he was fired because of his addition (which was discriminatory). The court disagreed and held that he was fired for violation the employer’s policy, a policy that was not discriminatory because he was capable of complying with it.
Policies that require disclosure of alcohol and drug dependency or addiction issues may be valid and enforceable. Policies that are impossible for an addicted employee to comply with should be avoided. Employers should make it clear that disciplinary actions are not taken because of the employee’s addiction, but because of a breach of the workplace policy.