Legalization of Marijuana/Cannabis and the effects on Employers
On October 17, 2018, Marijuana/Cannabis was legalized by the Federal Government for recreational use and no longer considered the act of smoking it for non-medicinal reasons a criminal offense. This change to how the Federal Government views cannabis has been a long awaited welcome by anyone who smoked it recreationally as well as the various organizations that have been fighting for its legalization for over 25 years. The changes are not exactly what most people would have liked to see, however it is a step in the right direction. Prior to its legalization, if you were caught smoking cannabis without a medical prescription you were charged under the Controlled Drugs and Substance Act and served with a summons to appear. Suffice to say, the changes were needed as most people that smoked cannabis often had to hide the fact from everyone they know as it carried its stigmas.
Fast forward to 2019, and we are starting to see the impacts from the changes in October, notably, the stigma is gone and people who smoke today are not worried about being treated like a criminal unless they are caught driving a Motor vehicle as that will surely be considered driving under the influence of a Drug and would fall under Driving impaired just like driving drunk and being under the influence of alcohol. So if you’re looking to get high, it’s probably a really good idea not operate a car or any motorized vehicles whatsoever.
The main focus of this article is to discuss some of the new issues that have arisen for employers. Prior to legalization, employers did not need to implement any policies regarding the use of cannabis at the workplace, simply because it was illegal and not to be used at all. However, with the acceptance and legalization of the recreational Drug employers are finding that people on their breaks and/or lunches tend to smoke the drug and return to work high. As an employer, its vital that you be prepared for these changes, and implement whatsoever policies required to insure that your employees are not showing up to work high as should something happen at the workplace and you didn’t take initiative you will be held fully responsible. The implications of this problem are endless and open a can of worms for employer liability. We suggest that if you are an employer, you take a look at some of the legislation regarding restrictions on the recreational drug and implement them along with other specific office behavior in your policy handbook similar to alcohol. Please note, Medical cannabis use and recreational use have different rules governing them. For example;
• Employers who employ people using Medical cannabis for medical reasons must accommodate the employee as you would for any disabled employee under the Human Rights Legislation, as Medical cannabis is considered a prescribed medication and is required. However, if the person is operating heavy machinery or it becomes clear they are a safety risk to themselves or others then they need to be reassigned to some other duty. Should you, as an employer find yourself in a situation where you’re not sure how to accommodate the disability then you can always speak to legal counsel, the employees doctor or an independent examiner for the best course of action regarding duties and what would be considered an appropriate accommodation if an accommodation is even possible(depending of the job).
• Employers who employ people using cannabis for recreational reasons have no right or protections under the Human Rights Legislation as its recreational and not required. So if an employee shows up to work high then it can be treated like they showed up drunk and/or impaired. The mentioned changes are going to be producing a lot more case law over time as more and more employers will find this issue becoming more prevalent when it comes to accommodation under the Human Rights Code. As of today, we are already seeing cases from different provinces with very different considerations, both in favor and not in favor of the employee.
Suffice to say, the argument that the employer can choose to have a zero tolerance policy in the workplace will be a thing of the past. If the employee is using it for medical reasons and has the proper medical prescriptions, then the employer must work with that employee as an individual with a disability and must accommodate it as well as consider the safety concerns of the employee and other employees that work for them.