Clearing the air around the employment law aspects of legalized marijuana
By Jason Beeho
Canada’s legalization of recreational marijuana is here; and – based on the number of calls received from clients on
this issue in recent weeks – many employers are facing uncertainty as to how – or even if – they should be reacting to this legal development.
On the one hand, some employers are fearful that Canadian workplaces will soon be awash in “hippie culture.” On the other hand, other employers enquire about whether marijuana can or should be on offer – along with alcohol – at company parties and social events.
All of those are fair questions – particularly in light of some of the hype and misinformation that has been part of sociological and political commentary surrounding the upcoming legalization.
The starting points for addressing any such questions are as follows: 1) Although recreational marijuana will no longer be illegal in Canada, it will be regulated; and 2) Employers are under no obligation to permit or condone cannabis use in the workplace context. In fact, Ontario’s Cannabis Act specifically prohibits the consumption of cannabis – excluding medical marijuana – in “a public place” and in “a workplace within the meaning of the Occupational Health and Safety Act.”
In other words, not only can employers prohibit the use of recreational marijuana in the workplace, they are required to do so. Employers should – for all intents and purposes – continue treating recreational marijuana as though it is illegal; and, in that regard, employees should be clearly advised that, notwithstanding the legislative changes that come into place as of Oct. 17, 2018, no worker is permitted to possess, consume, distribute and/or be under the influence of recreational marijuana at the workplace and/or while otherwise engaged in company business at any location.
Also, and particularly over the next several months until the new legislation and its enforcement mechanisms become more familiar and engrained, it would be prudent for employers to maintain a prohibition on recreational marijuana at any company function; regardless of whether or not that function arguably takes place outside of the workplace – or away from any other “public place” – per se.
Indeed, one need only look to the range of potential issues and liabilities that employers continue to grapple with in relation to making alcohol available at company events (i.e. not only potential liabilities to their own workers, but also liabilities to third parties in situations where impaired employees cause damage or injury to others) to appreciate that it would be imprudent to invite further liability by way of permitting workers to indulge in any other intoxicating substance – whether legal or not – in any employment-related context.
If the legalization of recreational marijuana is newsworthy from the employment-law perspective, the real “news” is that – perhaps surprisingly for some – there is no news. The legislation creates no new rights for employees and, for most employers, it will entail relatively few changes to existing policies and practices. In that regard, inasmuch as many employers already have the following policies and programs in place, much of their preparation for Oct. 17 is taken care of:
- Drug and alcohol policies that prohibit employees from bringing any drugs (save for prescription drugs – including medical marijuana – to be used in accordance with doctor’s orders) or alcohol into the workplace, and from reporting for work in an impaired state.
- Policies that set out reporting mechanisms for employees who believe that a co-worker may be impaired, whether by marijuana or any other substance.
- Occupational health and safety policies that provide for the investigation of accidents and “near miss” incidents, and which – in appropriate circumstances – provide for drug and alcohol testing.
- Training programs to assist managers and supervisors in spotting signs of impairment, and in investigating and addressing incidents of suspected impairment.
- Smoke-free workplace policies.
- Policies and programs which recognize that drug and alcohol dependencies represent disabilities under human rights legislation and which prescribe employers’ obligations to accommodate such disabilities.
To the extent that employers have not previously established and implemented such policies, those businesses should treat Oct. 17, 2018, as a deadline for putting their houses in order.
To the extent that employers already have such policies in place, the legalization of recreational marijuana on Oct. 17 marks an opportunity to review, revise and re-educate. In particular, managers, supervisors and human resources departments should be communicating with workers to dispel any false notions to the effect that, as of Oct. 17, it will somehow become more acceptable to possess, distribute or use recreational marijuana in work-related settings. Employees should understand that bringing a joint to work on Oct. 17 will attract consequences no less serious than having done so the day before.
The bottom line is that although Canada’s legalization of recreational marijuana represents a major development from the perspective of sociologists, law enforcement and the administration of criminal justice, that is not so in the employment law context. Rather, as far as the employment relationship is concerned, Oct. 17, 2018, will – for the most part – mark “just another day at the office.”
Jason Beeho is a partner at Levitt LLP.