Tips for employers on handling marijuana use in the workplace before and after recreational marijuana becomes legal.
I often get phone calls from clients asking for guidance on what do to when something out of the ordinary happens in the workplace. Recently, I’ve helped clients with numerous marijuana related workplace issues and so I thought I’d share some tips on how to handle them.
Consider this situation:
Mary, one of your long time employees comes to you and says she found a vaporizer in the staff room. It was in a clear plastic bag smelling strongly of marijuana and looked like it had been mistakenly left behind by someone. What do you do with the vaporizer? How do you communicate about this “lost” item to employees in the workplace? Is there anything else you need to do?
The current law
First of all, it should be understood that prescribed medical marijuana is legal in Canada and regulated by the Access to Cannabis for Medical Purposes Regulation.
At the moment, recreational marijuana is illegal in all Canadian provinces and territories. It is anticipated that in late 2018, recreational marijuana will be legalized in Canada.
The proposed law
The draft legislation will permit adults of a certain age to possess up to 30 grams of dry or fresh cannabis, share up to 30 grams of dried cannabis with other adults, and buy dry cannabis or cannabis oil from a provincially regulated retailer. Adults would also be permitted to grow up to four plants per residence for personal use.
Application to the misplaced vaporizer scenario
Here are the PH TIPS on how to handle “misplaced vaporizer” situation:
- Don’t jump to conclusions: In the above fact scenario, it is not clear whether the vaporizer was needed for ingestion of medicinal marijuana or for recreational marijuana. Before you take any steps to discipline, you’ll need to determine all the facts. It is not recommended that you call the police immediately.
- Hold the “evidence”: The vaporizer should be stored in a safe place (like any lost item) in the event an employee comes forward to re-claim it.
- Notifying employees: If employers feel that it is necessary to inform employees that such an item has been “found” and can be retrieved, employers should keep in mind right now, marijuana use is only legal if it is to be used for medicinal purposes.
- Turn your mind to accommodation: Use of medicinal marijuana for a disability-related purpose must be accommodated. If the employee was using marijuana, it may be time to have a discussion with an employee who comes forward to claim the vaporizer and ask if it is being used to ingest medically prescribed marijuana. If the answer is yes, then the discussion should also include talking about what accommodations are necessary and set out the workplace parameters for use (preferably having reference to a pre-established workplace drug and alcohol use policy).
- Possible current criminal implications: While it is unlikely that an employee who is illegally using marijuana now will come forward to claim the vaporizer, an employer must still be prepared to deal with such situation if it occurs. So, if an employer determines that the vaporizer was not being used for medicinal purposes prior to recreational use legalization, the employer should be reminding employees that drug use in the workplace is prohibited (unless for medical use as referenced above) and that they are engaging in an illegal activity which is subject to criminal conviction. While owning/ possessing a vaporizer is not illegal and therefore finding that paraphernalia in the workplace does not require an employer to contact the police, if it were to be accompanied by/ contained an illegal substance, the police should immediately be notified.
- Post-decriminalization: After the partial de-criminalization law takes effect, there will be no need to have the police involved in the event marijuana is found with the vaporizer, but employees will need to be reminded of the company policy on drugs and alcohol in the workplace which, if drafted correctly, would prohibit the presence of such drugs in the workplace except for medicinal use.
- Potential policy breach: Since employers will be permitted to have drug and alcohol policies which establish guidelines relating to what is acceptable, the consequences of non-compliance and who to speak to for additional information or questions, employers should review their existing policies to get ready for marijuana legalization.
Proactive policy recommendations
We recommend that any marijuana policies:
- State that employees are prohibited from being impaired in the workplace and that employees are expected to be fit for duty and able to perform their duties safely and to the company’s expected standards of performance for the duration of their work hours;
- State that employees are prohibited from possessing or using non-medical drugs and/or alcohol in the workplace, including during paid and unpaid breaks;
- Deal with the use of medical drugs in the workplace and can stipulate that employees possessing medical drugs in the workplace are expected to use them in a responsible manner, and solely for the health-related purposes for which they are intended;
- Require that employees who use, and/or anticipate having to use, medical drugs must communicate to management any potential health and safety risk, limitation, or restriction requiring modification of duties and/or temporary reassignment and stipulate that such communication shall take place prior to the performance of the employee’s work-related duties;
Unusual things can occur in workplaces; however, employers can prepare for some of those things by instituting good policies and practices, particularly in advance of any anticipated change in legislation. While an employee’s forgetfulness in leaving a vaporizer in the lunch room cannot be addressed by a policy, we recommend that employers review their drug and alcohol policies to ensure that they account for both recreational and medicinal marijuana use.
Patrizia Piccolo – Partner and Co-Founder
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