An Employer’s Guide to the Legalization of Marijuana

September 11, 2018

Katrina S. Yaworsky

The Cannabis Act

The Cannabis Act (the “Act”) will come into force on October 17, 2018.  The Act will allow adults who are 18 or 19 years of age and older (depending on the province or territory) to legally possess, grow and purchase limited amounts of cannabis, or marijuana, for personal use.  The Act amends the Criminal Code, the Controlled Drugs and Substance Act and several other statutes. With these amendments, possessing small amounts of marijuana on your person will no longer be a criminal offence.

While the Act enables the federal government to regulate commercial production, provinces and territories will have authority to regulate certain aspects of the marijuana industry, such as distribution and retail, as they do for tobacco and liquor. The province of BC will determine how and where marijuana can be sold and where it may be consumed.  BC has determined that the Liquor Distribution Branch will be the wholesale distributor of recreational marijuana, which will operate marijuana retail stores provincially.

What are my Rights as an Employer?

Despite the legalization of recreational marijuana, the use of marijuana in the workplace should not change.  Employers will continue to have the right to require employees to report to work sober and without any form of impairment.  A zero-tolerance policy is enforceable.

Under BC’s statutes, employers maintain the right to safe and productive employees who are not impaired by alcohol, drugs or other substances.  The Workers Compensation Act and the Occupational Health and Safety Regulation stipulate certain rights that employers may rely on to regulate the workplace:

Section 116(2)(d) of the Workers Compensation Act:

A worker is required to “ensure that the worker’s ability to work without risk to his or her health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes.

Section 4.20 of the Occupational Health and Safety Regulation:

(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(3) A person must not remain at a workplace if the person’s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons. 

Employers are responsible for the safety of all of their employees and, if an employee is impaired and poses a risk to the other employees, the employer must regulate the workplace accordingly.  Accordingly, recreational marijuana use at work should be treated like any other controlled substance, such as alcohol. As for an employee who uses marijuana for medical purposes, an employer maintains the right to ensure that employees are not impaired and the workplace is safe for all employees.  Notwithstanding the enforcement of the Act, an employer will remain entitled to insist that an employee does not use or act under the influence of marijuana while at work. If an employer reasonably believes that an employee is impaired, an employer has the right under the Occupational Health and Safety Regulation to bar the impaired employee from the workplace, subject to the duty to accommodate, as discussed below.

The Duty to Accommodate

Despite an employer’s right to have an impairment-free workplace, human rights laws create various exceptions.  Marijuana use can trigger an employer’s duty to accommodate. Specifically, employers are required to accommodate employees with illnesses, injuries and/or mental/physical disabilities, up to the point of undue hardship.  Marijuana for medical purposes engages the same principles of accommodation as any other prescribed drug, meaning that employers are obligated to accommodate employees with illnesses, injuries and disabilities under both provincial and federal human rights codes.  That being said, a prescription for marijuana does not automatically entitle an employee to smoke in the workplace, to be impaired at work, or to compromise employee and client safety. An employer has the right to prohibit an employee from the workplace, if the employer reasonably believes the employee is impaired and may pose a risk to the safety of other employees.

It is important to remember that this duty to accommodate can also arise where an individual suffers from an addiction or perceived addiction to marijuana.  An employer may not, without reasonable justification, discriminate based on physical or mental disability in respect of whether or not to provide someone with an accommodation (section 8 of the Human Rights Code).  Nor may a person refuse to employ or continue to employ a person because of a physical or mental disability (section 13(1) of the Human Rights Code).  This is relevant to marijuana usage, as drug dependency or addiction is considered a disability.

What Does Accommodation Mean?

There are several British Columbia Human Rights Tribunal decisions that have clarified an employer’s obligations to accommodate an employee using marijuana for medical purposes. From these cases we learn that employers are required to engage the accommodation process, as would be done with any other disability.

When an employer is aware, or reasonably ought to be aware, that there may be a relationship between an employee’s disability and their performance at work, the employer has a duty to inquire into that possible relationship before making an adverse decision against the employee.  If the employer’s inquiries disclose that there is a relationship between the employee’s disability and work performance, then the employer has a duty to accommodate the employee. Specifically, accommodation is required up to the point of undue hardship, where the cost of reasonable and practical steps are too difficult or expensive for the employer.  The bar for employers to prove that a form of accommodation is too difficult or expensive is extremely high.

Generally speaking, the accommodation process will involve the employer requesting medical information from the employee.  The employer should look for evidence that confirms that the marijuana is necessary and provides information in respect of the potential impairments that the employee may suffer while under the influence of marijuana.  Once adequate information is provided, the employer and employee should determine a form of accommodation, as would be done with any other disability.

For medical marijuana usage, therefore, the challenge for an employer is to determine whether allowable amounts of marijuana for medical use will not lead to impairment.  Other concerns include issues of potential decreased productivity, the impact of usage and/or accommodation on other employees, and the overall costs of accommodation even if not up to point of undue hardship. What employers and employees need is a workable definition of impairment and a tool to assist in determining impairment, such as a universally applicable checklist for non-medically trained supervisors.  As previously stated, however, accommodating marijuana use does not give a worker the right to be impaired at work or to pose a health and safety risk to themselves or others.  Employers have the right to prohibit impairment on the job, particularly in safety-sensitive work environments.

Immediate Steps an Employer Should Take

Employers must revisit their drug and alcohol workplace policies to ensure that the use of recreational and prescription marijuana is incorporated and openly addressed. By creating guidelines that speak to marijuana use, employers can establish clear policies and expectations for employees that specify what is acceptable, the consequences of non-compliance, and grounds for termination in cases where employees possess or consume marijuana at work and thereby create unsafe work conditions.  Employers have the right to enforce a zero-tolerance policy.  For instance, a workplace policy may ban the use of recreational marijuana in the workplace and stipulate penalties for non-compliance, although such a policy may include an exception for use of marijuana for medical purposes, depending on the type of work performed.  Drug and alcohol policies should distinguish between recreational marijuana use and medically prescribed marijuana use.

Employers should create or update existing accommodation procedures so as to address marijuana use by disabled employees. Such procedures may include the requirement that the employee provide the employer with:

  1. a written accommodation request;
  2. a copy of the employee’s authorization to use marijuana; and
  3. information from the authorizing physician relating to how the employee’s use of marijuana may affect safety and effectiveness in the workplace.

Employers should adopt a confidential process for allowing employees to disclose the existence of an illness, disability or drug dependency, without fear of penalty. Policies should treat prescription marijuana in the same fashion as other medical prescriptions, subject to workplace rules prohibiting smoking generally.  Recreational marijuana use may be addressed in the same manner as workplace policies on alcohol and drug use.

Ultimately, employers should openly communication with employees about alcohol and drug policies. For more information on how best to proceed when revising workplace policies and accommodating employees, please contact one of our lawyers.

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