policies & procedures
acting in breach of the policy and establish grounds for termina-tion.
It may also require employees to proactively disclose issues
regarding drug or alcohol abuse, dependency and addiction for the
purposes of health and safety, accommodation and treatment.
Should an employee fail to make such disclosure, but then do
so only after an incident that requires discipline, the policy could
specify that the employer may discipline the employee for breach-ing
the disclosure requirement of the policy. However, an employer
may not discipline or terminate the employee simply because the
employee may have an actual or perceived addiction, as an addic-tion
is a disability under human rights legislation and such an
action would be a human rights violation.
As stated above, the implementation of a zero-tolerance policy
does not free the employer from the obligation under human rights
legislation to accommodate disabled employees who have been
prescribed medical marijuana – or employees who are addicted to
marijuana – to the point of undue hardship. Employers are enti-tled
to seek appropriate medical documentation regarding the
precise restrictions and recommended accommodation, but not
the diagnosis or medical condition. However, a prescription from a
physician for medical marijuana – or a marijuana addiction – does
not give an employee the right to be impaired at work when the
employee’s impairment could put the employee’s health and safety
at risk or threaten that of their co-workers or the general public.
In such safety-sensitive circumstances, an employer has the right
to ask the employee not to report to work in an impaired state. In
addition, employees are still forbidden from smoking marijuana in
the workplace in violation of anti-smoking laws, whether or not
they have a prescription for medical marijuana.
Employers should train their supervisors and managers on
their policies regarding marijuana possession and usage in the
workplace, including identifying the signs of marijuana usage
and how to address an employee using marijuana. Existing and
new employees should be provided comprehensive training about
their employer’s policies by supervisors and managers who have
been thoroughly educated about their responsibilities. Employees
should also be asked to sign new or updated policies to acknowl-edge
that they have been advised of them and understand them.
Unfortunately, definitive testing of impairment from the use of
marijuana is not currently available, but it is possible to assess the
level of THC (the primary psychoactive chemical in cannabis) in
an employee’s body. In other words, current testing methods can-not
determine whether a person is actually impaired at the time of
testing and the case law has recognized this. According to Health
Canada, cannabis-induced impairment may persist for 24 hours,
but there are differing views on this.
Unlike in the U.S., pre-employment testing is generally not
permitted in Canada except in limited circumstances. However,
there appears to be a trend in favour of the implementation
of random drug and alcohol testing for employees who are in
safety-sensitive positions for health and safety reasons, although
a general problem of drugs in the workplace is generally required.
Post-incident and reasonable-cause testing may be more eas-ily
implemented, depending on the nature of the workplace and
positions held.
Once an employer has determined that an employee has
breached its policies, the next step is to proceed with the disci-plinary
consequences for breach, as outlined in the policy. In some
cases, for example, after a history of carefully documented pro-gressive
discipline or upon breach of a last-chance agreement,
termination of employment for just cause may be appropriately
considered. By establishing such a history prior to termination,
the employer may be freed from a requirement to provide notice
or payment in lieu thereof. As disciplining or terminating an
employee due to suspected marijuana use in the workplace can
be a legally complex matter, particularly in this new landscape,
employers should consider seeking guidance from experienced
legal counsel before proceeding.
The legalization of recreational marijuana will undoubtedly
create a new set of legal developments in the future, both by the
legislature and by the courts. We look forward to monitoring the
legal evolution of drug use and testing in the Canadian workplace
as the story unfolds. n
Monty Verlint is partner and Rhonda Levy serves as knowledge
management counsel at law firm Littler LLP.
anzebizjan / 123RF Stock Photo
All employees should be trained on the health and safety hazards of recreational marijuana in the workplace
30 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL
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