Marijuana and the Workplace

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.

Testimonials

I just wanted to extend my thanks for your absolutely first class service. When we were purchasing our home, as you know, we had many obstacles to overcome and actually thought in the last two days that our deal might not go through. It was a very stressful time in our lives and I want you to know that we’ll always appreciate your calm, caring, professional manner and how you made us feel at ease and that it would all work out because we had you representing us.

You and the rest of your team are awesome, and this is why I will continue to refer you to anyone I know who needs legal representation. As a realtor being able to refer my clients to someone who I know without a doubt will provide them with the best legal advice and service adds to my confidence in terms of the overall service I am providing.

You have, in essence become a key element of my business team and I look forward to building on what is already a successful business relationship.”

M.D.

Lianne, thank you so much for your excellent work on our conveyance. Your extra work helped save us thousands of dollars.

Dear Mr. Elgersma, I want to thank you and your team for all your help during my recent sale in Victoria. My lawyer here in Ontario was very impressed by your fee and said it was a very good deal in his experience. Thank you very much.

C.G.

I recently had the experience of selling my condo. As I am not in the habit of frequently buying and selling my home I find the whole process a bit unnerving. To add to my unfamiliarity with home transactions, I was due to be out of the country on the completion date of my sale. Needless to say this was somewhat worrisome to me.

I hired Del to handle the legal transaction of my sale. What a great decision this turned out to be. Del and I got together a week prior to my trip and completed the necessary paperwork. There are a lot of papers to sign when selling a home and Del took the time to explain each document to me and answered all the questions I had. He then assured me that he had everything he needed in order to handle the transaction in my absence.

Del had explained everything so clearly to me and made me feel so at ease about the process that I felt completely comfortable leaving my legal interests in his hands while I was off vacationing. This made quite an impression on me as I have never felt comfortable leaving my fate in the hands of others, especially the likes of lawyers!

Previously I would have worried about everything going smoothly on the actual day of my home sale but to my delight and surprise on the completion date of this sale I laid in my hammock and drank champagne in the sunshine celebrating with complete confidence that the transaction would be handled just fine. I returned home only to have my suspicions confirmed . . .yes, in my absence, money had been quietly deposited to my account!

Thank you Del for allowing me to let go of the stress and worry around this large, important and infrequent type of event in my life.

A.W.

Over the past year Lianne Macdonald has provided excellent legal advice to my real estate clients. I am always impressed with the quality of her services, as well as the care shown by Lianne and her staff. Lianne is always available if I have any questions or concerns. Her sound advice and legal counsel has greatly helped me in difficult and unusual situations. Lianne Macdonald is a proactive lawyer, an honest and caring person and a trusted friend. Without hesitation, I would recommend Lianne’s services to others, and will continue to use her service where they pertain.

C.W.