On October 17th, private recreational cannabis use will become legal in Ontario. With less than two weeks to go, employers may be wondering how this change in the law will affect their business. Let’s consider cannabis in the office! Here are answers to the five most common questions surrounding cannabis in the workplace.
Do employers need to update their policies ahead of the legalization of cannabis?
Yes. As cannabis will now be classified as a legal recreational drug, employers should treat it in the same manner as they do alcohol and other legal substances (such as over-the-counter medication) that have impairing effects. If an employer has an existing drug and alcohol policy, then it must be updated to expressly prohibit the use or possession of cannabis in the workplace. Employers who do not have drug and alcohol policy in place are well advised to implement one immediately.
What can employers do about employees who are impaired by cannabis in the workplace?
Employers must remember that the decriminalization of cannabis use is not a license for employee impairment. Employers can and should prohibit the use or possession of cannabis in the workplace by implementing, using and enforcing a proper drug and alcohol policy. The policy should clearly outline the disciplinary procedure that will be followed in the event that an employee violates the policy, while at the same time accounting for, and if applicable, accommodating (up to the point of undue hardship) any disability that may be linked to cannabis use.
In addition to maintaining a healthy work environment, prohibiting cannabis use and employee impairment in the workplace reduces the risk of harm to other workers and promotes compliance with occupational health and safety laws.
Can employers drug test employees after Marijuana becomes legal?
The short answer is that there is no short answer. This has historically been and continues to be a hot button topic. Of course, employers are free to do as they wish. However, the law in Canada remains unclear as to what forms of mandatory or random drug testing are permissible. Workplace drug testing policies invoke a host of legal considerations, such as the application of human rights statutes (which seek to weed out programs that have discriminatory effects on individuals with substance abuse disabilities) and privacy laws. Generally speaking, courts and tribunals will have a greater tolerance for drug testing policies that are used in safety-sensitive work environments where, for example, workers regularly operate heavy machinery or handle hazardous substances. The bottom line is that employers must implement policies that are reasonable and appropriate having regard for the specific conditions present in their workplaces.
How should employers accommodate employees using medical Marijuana?
An employer must accommodate a disabled employee who requires a prescription for medicinal cannabis up to what is known in legal parlance as the “point of undue hardship”. This requires having a policy in place that specifically lays out the employer’s accommodation process. It is insufficient for an employer to simply state that it will “accommodate” an employee’s disability-related need to consume medicinal cannabis during working hours to the point of “Undue hardship”. Every case requires an individual analysis of the employee’s needs relative to the employer’s health and safety concerns and legal obligations.
Should employers cover medical marijuana on your group benefits plan?
This is a question that many benefit providers have already been addressing. It’s recommended that employers speak to their benefits providers to ask what they have got in place for medical marijuana currently and if the plan will be changing or if it is being updated.