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Tips to managing cannabis legalization

By Kathleen Chevalier and Tamara Ticoll


With the legalization of marijuana on the horizon, many employers are seeking guidance to determine what, if anything, should be done to address

its seemingly inevitable impact on the workplace. This article will review the employment lifecycle, from hiring to termination, and discuss the tools that can be leveraged to assist employers with managing marijuana in the workplace.

Many employers have inquired as to whether the legalization of marijuana will expand their right to conduct pre-employment drug testing. This seems unlikely, as the rationale for preventing employers from conducting such screening in all but a few specific circumstances – with most being linked to safety-sensitive roles and/or post incident – does not appear to be directly impacted by the legal status of marijuana. As such, employers are cautioned against revising pre-employment screening measures to include drug testing on the basis of legalization alone.

However, employers are encouraged to review their drug and alcohol policies and update them to include references to marijuana and how it will be managed in the workplace. Employers will need to consider how employees that have been prescribed medical marijuana will be managed versus employees that use marijuana recreationally. Generally, for medical marijuana, it is likely most effective to follow policy guidelines already established for prescription drugs that may cause mental impairment while at work. These may include accommodations such as modified duties or a leave of absence to ensure that the employee is receiving proper treatment and that the employer’s duty to provide a safe work environment is being discharged.

Similar to prescription drugs, employers can draft into their policies that employees must provide a copy of the authorization from a licensed physician prescribing medical marijuana, rather than simply rely on an employee’s statement to that effect. In some cases, particularly in the context of safety-sensitive workplaces and/or roles, employers may require medical documentation confirming that there are no alternative options to treat the employee’s condition. Where such documentation is deficient, or disputed for other reasons, employers may wish to include in their policies the requirement that an employee attend an independent medical examination to confirm the lack of alternative treatment options.

For recreational use, existing policies regarding alcohol in the workplace can be leveraged and modified to include marijuana. These policies often restrict employees from imbibing while at work and from reporting to work intoxicated or otherwise under the influence. These same rules would apply to legalized marijuana. Similarly, regulations for the use of marijuana during work-related social events would also be addressed in the policy. Depending on the workplace culture, some employers may approach marijuana use at social events in the same way as alcohol – by permitting responsible, legal use – while others may take a more conservative approach – saying that recreational use of marijuana at social events is strictly prohibited. To that end, the Ontario Cannabis Act will allow for recreational use of marijuana only in private residences and recreational cannabis will not be allowed in any public place, workplace or in motorized vehicles.

As with other significant policies, they should be available at the hiring stage and the employee should review the policies prior to signing an offer of employment and be trained on the policy upon commencing employment. Employers will also be well served by training HR and managers/supervisors on the workplace policies, new rules regarding marijuana and, particularly in safety-sensitive industries, how to recognize signs of use and/or abuse and how to respond. Other existing employees should receive training on the policy once it is implemented or updated in the workplace. Not only will this assist in preventing unintentional policy violations, but will also provide firmer footing for the employer should disciplinary action or termination of employment result from the employee’s violation of the policy.

Similarly, if terminating an employee for violation of the policy, whether sufficient cause exists will depend on the seriousness of the offence as compared to the employee’s length of service and record (i.e. whether the action taken is proportional to the violation). The fact that the violation involves marijuana as opposed to alcohol or a prescription drug should not be viewed as a significant factor. Further, employers should also examine their motivations and determine whether they are stigmatizing an employee due to the use of marijuana or if the use was for medical purposes, as this may expose the organization to a discrimination claim by the employee, pleading that the termination was motivated by the employee’s disability or employer’s perception of disability.

Whether it’s hiring, firing or somewhere in the middle of the employment lifecycle, employers are best served by thoughtfully addressing the regulation of marijuana in the workplace via well drafted policies, proper training and ensuring that any disciplinary action taken for violation of such policies is balanced and unbiased. When in doubt, look to the prior treatment of alcohol and prescription drugs in the workplace and apply the guiding principles to the matter is a strategy that will serve employers well.

Kathleen Chevalier is a partner practising in the Employment & Labour Group at Stikeman Elliott LLP. Tamara Ticoll is an associate practicing in the Employment & Labour Group at Stikeman Elliott LLP.




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