A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

Going Up In Smoke: Will We Ever Be Able To Smoke Pot At Work?

Going Up In Smoke: Will We Ever Be Able To Smoke Pot At Work?

In 1992, during the US Presidential election, Bill Clinton created a scandal on the Arsenio Hall show by admitting that he “experimented with marijuana a time or two” during his studies, but that he didn’t care for it, and, more famously, that he “didn’t inhale.” 

At the time, the concept of a world leader having admitted to smoking marijuana was downright shocking. Yet today, while the 2016 Presidential election manages to shock us for entirely different reasons, something as banal as the marijuana has become, well, passé.  

Our own Prime Minister Justin Trudeau admitted to smoking marijuana most recently while he was Leader of the Opposition, only a few years before his 2015 election. Now as leader he has announced plans to legalize marijuana, and the medical usage laws have already been overhauled, what’s the big deal about a little bit of pot? Moreover, if it does become legal, how will it impact the workplace?

While I won’t attempt to answer the first question, the second is a bit more complicated. There are several issues at play, from medical usage to addiction to drug testing, so it may be best to unpack them one by one.

Medical Usage

While medical cannabis is still controversial in some circles, its accepted usage is growing as an effective treatment for a variety of ailments. In other words, marijuana/cannabis can be used by individuals in a variety of forms (smoked, vaporized, edibles, etc.) just like any other prescription medication.

For employers, this means that the duty to accommodate is engaged, and thus employers are responsible for engaging the employees to the point of reasonable hardship, just as they would for any other employee with a disability. For example, if an employee is required to take their medication at a certain time, they must be allowed to do so. If they are required to take breaks during a shift to take their medication, they must be given those breaks. It is unlikely that either would place unreasonable hardship on the employer. 

There are, however, situations that may become trickier. In a non-smoking work environment, the employer may not be able to have the employee smoke marijuana on the premises, but may instead be able to allow them off the premises for the necessary period of time. Alternatively, consuming the medication in another form while at work, such as an edible product or through a smokeless vaporizer, may be a workable solution for both the employer and the employee. 

Like with any ailment, an employer is not entitled to know specific medical information from their employee. They are, however, entitled to know from medical documentation how the employee’s health condition, including any medication taken, may impact their duties and abilities in the workplace. While medical marijuana is often prescribed in a form that will have minimal impairment on the user’s abilities, this still may be a consideration that the employee can address with their employer and their physician. 

Drug Testing

As marijuana in the workplace is still a relatively new phenomenon and the laws are still changing, the best legal guidelines for now come from cases involving alcohol usage. 

As it stands, the current law in Canada as laid out by the Supreme Court focuses on unionized workplaces, where other considerations apply. For broader guidance, the Ontario Human Rights Commission recently published a policy guideline on drug and alcohol testing, which focuses on some of the inherent human rights considerations. The Commission states that workplace testing policies must be:

1. Adopted for a purpose that is rationally connected to performing the job
2. Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose
3. Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.

Their policy goes on to offer further recommendations for policy design, and they are worthy considerations. The safety sensitivity requirement, for example, means that the requirements for a crane operator or school bus driver would likely be different than those of a food service or retail employee. Likewise, most private employers, despite their fears about employee drug use, would have difficulty meeting the threshold that individuals cannot be accommodated without undue hardship to the employer. 

While that leads into the next section, it is first important to explain ‘undue hardship,’ a common phrase when it comes to accommodating individuals. Undue hardship essentially means that it is nearly impossible to accommodate an individual without enduring extreme costs, or health and safety risks. This is a high threshold to meet, and not one to be taken lightly. Unless they are completely unaffordable without damaging the business, accommodations must be made where required by law.   

Addiction

While the research is still early, there is some evidence that indicates that marijuana addiction may be real, and an individual may become mildly dependent. The research is minimal compared to science’s understanding of alcoholism, which is now understood to be a mental disease. However, when it comes to non-medicinal marijuana, can an employee claim an addiction as a disability that may require accommodation? 

In short, it is too early to tell where this area of law may lead. Human rights law in Ontario is designed primarily to protect employees, and disability or the perception of disability is enough to trigger a need for accommodation. The perception of disability is a complex legal issue, but in short human rights are protected if the employer believes the employee to have a disability, and discriminates against the employee in some way because of it. For example, if an employer believes an employee to have alcoholism and penalizes them because of it, that would be discriminatory even if the employee does not have a problem with alcohol. With marijuana usage though, this is still new territory. 

For employers, this will mean keeping an open mind. While we will discuss policies shortly, employers must consider that allowances in any policies may be required in cases of disability. If an employee does claim a non-medical marijuana addiction as a disability and requests accommodation, the employer should seek legal counsel from an employment lawyer before proceeding further. 

Daily Usage and the Workplace

Medical usage aside, what happens when ordinary everyday usage becomes legal? 

At this point it really is too early to tell. The federal legislation will likely come with a wide array of regulations that will provide more guidance for how the law will operate. 

The key consideration though is that the problem for most workplaces will not be usage, but impairment. Marijuana affects individuals differently, and some may be mildly impaired from infrequent usage while others may use daily with little behavioural impact. Furthermore, traces of marijuana can stay in the body long after any behavioural impacts have subsided.

Thus, if marijuana were to become as legal as alcohol and tobacco, employers would not be able to prevent their employees from using marijuana entirely. They can, however, structure rules around sobriety in the workplace, as well as prohibitions against smoking on workplace premises. Just as it may be a violation of company policy to be inebriated while at work, employers may in the future want to consider adding marijuana into those policies. 

The primary difficulty though that employers are likely to encounter is being cautious about issuing discipline.  While it may be new territory to them, employers should remember that marijuana can be used as medicine, and they would be wise to make inquiries about any potential accommodations that may be required before issuing discipline for marijuana use. 

The caveat for employees, of course, is that employees who attempt to take advantage and fake a medical illness may also be penalized under workplace policies. 

Policy Policy Policy!

The answer, of course, as it is to so many workplace issues, is to have good policy in place. The legislation that will come into place will take months to draft, and the public will likely be made aware of the details before the laws are enacted. This will hopefully provide guidance to employment lawyers on how to best advise employers and employees on the legalities of marijuana usage, and how best to structure workplace policies. 

For employers, it will be imperative to have good policies in place before the laws are in force. Otherwise, it may be difficult to discipline an employee for showing up to work high if there is no policy in place saying that they can’t.  An employment lawyer will be able to help employers structure policies that protect employers’ interests in workplace sobriety while not infringing on employees’ delicate medical issues.

For employees, while the upcoming legalization of marijuana will be exciting to some, these workplace policies will dictate usage during the workday and must be followed to avoid penalties. While employees are usually not precluded from consuming alcohol in their private lives (with some exceptions), they are usually forbidden from drinking on the job, which can result in serious consequences up to and including dismissal. When it is legalized, marijuana will most likely be treated in a similar fashion, and with similar consequences. 

The bottom line is that while lawmakers continue to hash it out, everyday marijuana usage will be dictated not just by regulations, but also by workplace policies. Past that, smoke ‘em if you got ‘em, I suppose...

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