In this conference Q&A, we address the legal implications that arise when an employee requests to be accommodated for using prescribed marijuana.
In partnership with Stringer LLP, First Reference Inc. hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding the federal legalization of cannabis coming into effect on October 17, 2018.
We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly until further notice, to provide further clarity on this year’s hot topics based on the questions we received.
Q:
What duty does the employer have with regard to an employee using medical marijuana during the workday and then driving home after work? What if an accident occurs?
A:
Employees using drugs (whether illicit, prescribed or recreational) whether in the workplace or not, give rise to many challenges for employers.
Even though the employee is required to show up at work unimpaired and is responsible not to let their use of recreational drugs or medical prescriptions including marijuana interfere with the safe operation of their employment duties, it is the employer who is always accountable to ensure the health and safety of all employees at the workplace. Therefore, employers need to be especially mindful of the doctrine of vicarious liability whereby employers are ultimately responsible for the actions and omissions of their employees in the course of employment. Moreover, the doctrine of vicarious liability imposes liability upon an employer or principal for the conduct of an employee or agent, on the grounds that the employer or principal should be held accountable for losses to third parties that arise from the actions of the employer or principal. Unlike the principle of direct liability, vicarious liability does not require that the employer or principal actually cause the loss sustained by the third party. Liability is imposed on the employer or principal with the rationale that the loss is the result of a reasonably foreseeable risk and attributable to the employer’s or principal’s activities, and that it is reasonable that the employer or principal should be liable for the risk (source: John Doe v. Bennett, 2004 SCC 17)
Learning from a related context, when it comes to alcohol use at company-sponsored events, Courts have clarified that due to the nature of the employer-employee relationship, the standard of care on an employer is higher than that on a tavern owner or a social host.
In addition to the general duty to maintain a safe workplace, employers who provide alcohol at a company-hosted event are obligated to:
- Monitor the amount of alcohol consumed by employees; and
- Take positive steps to prevent an employee from driving home after drinking.
Employers have a serious duty to safeguard their employees; this duty includes demanding the employee for the car keys, paying for a cab to send the employee home safely; calling the police, calling a contact to come and take the employee home, or physically stopping the employee from hurting himself or herself and others.
Where employees are intoxicated, drive, and subsequently get into a serious car accident after leaving a workplace or workplace event where alcohol was served, whereby there are significant injuries to the employees or others, employers may be found vicariously liable for the actions of their employees. Courts have shown little to no mercy when making awards for damages in these types of cases. Despite the fact that the intoxicated employees are found to be partly responsible for their own fate, employers have been ordered to pay such employees very high damages for their portion of responsibility.
Although you may not be allowing or condoning the use of drugs (whether illicit, prescribed or recreational) in the workplace or at company-related events, if you are aware or have an inclination, that an employee is high or, better stated, impaired due to substance use, you, under the general duty found under Occupational Health and Safety, should take action and remove the employee from the workplace to protect the employee and the other workers, and make arrangements to provide transportations to get the employee home safely.
Proactive employers should have the appropriate practices and procedures outlined in a workplace drug and alcohol policy indicating what will happen if an employee is impaired or if impairment is suspected in the workplace or at a workplace-related event, as well as ensuing consequences (i.e., disciplinary measures).
This policy should be communicated to all employees, and you should ensure that they have read and understood the policy and procedures, your expectations, prohibitions, appropriate conduct and the consequences of violating the policy.
Management should be trained on your policy and procedures as well as how to deal with employees who may be impaired in the workplace.
Learn more about the law and best practices on accommodating medical marijuana by consulting The Human Resources Advisor, Ontario edition. If you are not already a subscriber, try a 30-day free trial here.
Learn more about how to create an effective alcohol and drug policy by consulting Human Resources PolicyPro. If you are not a subscriber, try a 30-day free trial here.
Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.
- Q&A: Termination rights for probationary employees - October 25, 2018
- Q&A: Sharing liability of workplace parties for OHS violations - October 18, 2018
- Q&A: Is an employer responsible if employee drives home while high after using prescribed marijuana? - October 11, 2018
