The pending legalization of recreational marijuana is a source of frequent debate and significant public interest. It has also raised concerns for employers as to how legalization may impact their workplaces and what steps may be taken to protect staff, ensure safety and avoid loss of productivity.
Employer concern, in part, likely stems from an insufficient public awareness campaign and the inherent confusion of a federal system where provinces are left to implement federal law, thus resulting in a complicated patchwork of rules and regulation.
To facilitate the entitlement of Ontarians to purchase, possess and recreationally use marijuana, the provincial government will be launching its regulated retailer, the aptly named Ontario Cannabis Store (“OCS”). Present plans for the OCS include 150 standalone stores in operation by 2020 as well as online distribution across the province. It is further speculated that around 39% of Canadians will use marijuana once legalized. Against this backdrop, Ontario employers should be aware of the following:
Prohibiting recreational marijuana in the workplace
Employers have a right to demand that staff work soberly, safely and productively. In fact, many workplaces already prohibit employee alcohol use at work, and/or the performance of work after drinking alcohol.
The legalization of recreational marijuana essentially places it on level footing with alcohol. As such, it may be treated in the same manner, with a clear prohibition on staff smoking, or consuming edible marijuana, during working hours and/or coming to work intoxicated.
In addition, the Smoke-Free Ontario Act, 2017 will come into force on July 1, 2018. Among other things, this new legislation will prohibit individuals from smoking cannabis in any enclosed workplace or other designated area over which the employer exercises control, and also require employers to remove anybody from the workplace who refuses to comply with this requirement.
Implementing policy and training staff on recreational marijuana
The implementation of clear workplace policy specifying the obligations of employees with respect to alcohol and drug use is only half the battle. Communication to staff is key. Unless an employer’s alcohol and drug policy is brought to the express attention of staff, the employer will be unable to later rely on its content to pursue either disciplinary or non-disciplinary measures.
As such, best practice for employers is to provide all employees with a copy of any workplace policies (and have employees sign to confirm their receipt). Employers can also use recurring training sessions to supplement policy, and to remind employees of their obligation to work sober and the ramifications which may flow in the event of non-compliance. This may be especially important in safety-sensitive work environments.
Disciplining employees for recreational marijuana use
As set out above, employers are well-within their rights to set workplace rules around the use of recreational marijuana by staff. With clearly-communicated policies in place, employers are in a strong position to discipline and dismiss employees in the event that staff attend at work in an intoxicated state or their behaviour raises safety concerns.
Prior to issuing discipline for an employee’s marijuana use, employers should look to ensure that the individual is not experiencing an addiction that requires accommodation. One way to proactively address this issue is to implement, and communicate to staff, a drug use policy that encourages employees to disclose drug addictions without fear of discipline, while offering supports to those that come forward.
Circumstances where the duty to accommodate marijuana use is triggered
There is a critical difference between marijuana and alcohol, in that marijuana may be prescribed to employees for medical reasons. Accordingly, the approach that employers take towards medical, versus recreational, marijuana should be informed by this reality.
Generally speaking, employers in Ontario are required to provide reasonable accommodation of both disabled employees who use medical marijuana and employees with an addiction to marijuana. While these two scenarios differ considerably, ultimately the same obligation applies.
In considering whether the obligation to provide reasonable accommodation has been triggered, employers will want to first establish that an employee is in fact experiencing a disability. Employers are not under any legal obligation to accommodate an employee’s desire to use marijuana recreationally, and in fact, as discussed above, if this interferes with work requirements, it may form the basis for discipline.
When providing reasonable accommodation to an employee, employers should look to engage with the individual to understand any workplace restrictions and/or modifications that are required.
Employees are not entitled to demand their preferred accommodation. Rather, the employer is allowed to institute an accommodation that works best within the scope of its operations, provided that this reflects any restrictions that the employee may have and ensures that productive work may be safely performed. As part of any effort to accommodate a disabled employee’s prescribed marijuana use, employers are not required to:
- Allow the employee to work in an impaired state;
- Allow the employee to work where safety will be compromised; or
- Allow an employee to smoke marijuana at work.
If you are an employer with questions or concerns about the implications of legalized recreational marijuana for your workplace, please contact one of our employment lawyers to discuss further.