On the auspicious date of April 20, 2017, otherwise known as 4/20 or the high holiday of marijuana culture, Verity hosted a sober but engaging presentation: “Up in Smoke: The New Era of Workplace Drug Management”.
Lawyers Shana French and Ashley B. Brown from Sherrard Kuzz LLP, a leading employment and labour law firm exclusively representing management, discussed the implications for employers of the proposed decriminalization of recreational marijuana use and the already legal use of marijuana for medical purposes. While the focus was on marijuana, the discussion encompassed and was informed by best practices relating to alcohol and drugs generally.
Risk of impairment: should employers be concerned?
Shana and Ashley noted that it is a misconception to think that marijuana can only cause negligible impairment or minor cognitive decline. Credible sources indicate that impairment can last for over 24 hours and concentration or judgment can be seriously impacted. It follows that concerns over the safety of marijuana use in relation to the workplace cannot be casually dismissed, especially as Canada may have one of the highest user rates in the world.
As such, employers should have policies in place to deal with marijuana and other drug use, regardless of the potential for increased recreational use of marijuana when it is legalized (target date of July 1, 2018). But a survey of the two dozen HR professionals who attended the presentation indicated that many organizations do not have formal drug policies.
Medical versus recreational use of marijuana
Ashley and Shana proceeded on the basis that employers do not have: (1) a duty to accommodate recreational drug use; (2) an obligation to tolerate recreational drug use on company premises; or (3) a responsibility to tolerate employees coming to work while impaired from recreational drug use.
Special considerations apply, however, when marijuana is legally used to treat a medical condition. Human rights legislation requires employers to accommodate employees up to the point of undue hardship. Accommodation might mean allowing an employee to ingest marijuana during working hours.
The duty to accommodate medical marijuana use attracts the same analysis as does any other medically prescribed drug. The duty can be triggered when the employee reports medical marijuana use or when the employer becomes aware indirectly. The employer should request medical documentation and obtain information pertaining to these issues: is there a disability; are there alternative treatment options; what is the prescribed dosage and frequency of use; how long is usage required; is usage necessary at work; should an independent medical assessment be sought?
Addressing workplace concerns about medical marijuana
The use of medical marijuana raises several concerns, including the potential for reduced productivity or performance, negative effects on co-worker relations, and dangers to health or safety. Moreover, there is a risk of damage to the company brand or reputation where the employee using marijuana interacts with clients or is wearing a uniform or driving a company vehicle.
In particular, the smoking of marijuana may be objectionable to others in the workplace. Alternative methods of use might be considered, including vaporizing or ingestion in food or drink. If smoking is medically necessary at work, then an area can be designated to avoid second hand smoke (tobacco laws do not extend to medical marijuana). In terms of timing, smoking could be limited by the employer to scheduled breaks or meal periods. The company may also reasonably restrict the employee from smoking while in uniform, in public view, and around or in company vehicles.
The employer should also consider other solutions such as a modified work schedule, a leave of absence during the period of treatment, more frequent breaks, and alternate work where impairment is an issue.
The Ontario Health and Safety Act obliges employers to take every precaution reasonable in the circumstances to protect the health and safety of workers. It follows that accommodation does not mean allowing employees to carry out their duties while impaired where that may create a danger for the employee, co-workers, clients, and others.
Policies and procedures: what employers can do
A formal workplace policy should include these elements:
- Prohibition of employees in safety-sensitive positions from working while impaired
- Requirement to disclose use of drugs that may impair the ability to perform work safely
- Process for obtaining extra medical information to facilitate accommodation
- Availability of an independent medical opinion or examination
- Participation in the accommodation process by the employee (and their union)
- Restrictions regarding the use and storage of medical marijuana in the workplace
- Consequences of a policy breach or a failure to disclose or report, including discipline
- Procedure to deal with a breach that is fair and consistent, but allows for the taking into account of individual circumstances
One of the legal decisions cited by Shana and Ashley involves a structural assembler who was properly terminated for violation of the employer’s drug and alcohol policy. He had failed to disclose his use of medical marijuana prior to commencing work in a remote location and had possessed the drug at the camp. These actions violated safety standards which were established to achieve a “zero harm” target for the project.
Drug and alcohol testing may be legally permissible where there is reasonable cause or where a safety incident has occurred or narrowly been avoided. There are difficulties and limitations in regard to pre-employment and randomized testing. Also, tests for drugs like marijuana may not yet accurately identify present impairment.
Employers need to be proactive in updating their policy to stay in step with an evolving area of law and science. Management and employees need to be regularly educated on the policy. Legal advice may be invaluable in creating or reviewing a policy and to address particular circumstances.
Bob Dylan famously sang that “everybody must get stoned”. However, current legislative developments notwithstanding, this is still not necessarily true in the workplace.