workplace wellbeing
Codes of conduct should be updated to address whether limited use of recreational marijuana is permissible during
work-related social activities
on marijuana and intoxication in order to prevent health issues as
well as workplace accidents.
Employers will also need to consider whether it is appropriate
to update their health benefits and wellness plans to cover medical
marijuana to align with current employee and societal expecta-tions.
Additionally, where the organization is one with high risk
factors for alcohol and drug addictions, employers should assess
its benefits coverage to consider including rehabilitation pro-grams,
employee assistance programs and other wellness and
support programs.
APPLYING ACCOMMODATION
Recreational use of marijuana is not protected under Canadian
human rights legislation as it does not constitute a disability
unless it is improperly treated by employers as a perceived disabil-ity
when making employment decisions. Policies and decisions
must not equate use with abuse. Treating recreational drug and
alcohol use as a perceived disability and/or assuming marijuana
use will impair employees’ ability to perform their essential duties
are common employer mistakes that lead to exposure to liability
where there formerly was none.
As a general rule, recreational marijuana use should be treated
and reacted to in the same manner as alcohol use in the work-place
– up and until there is evidence of a dependence issue. This
is a different set of circumstances than when marijuana is pre-scribed,
accommodation for use or dependence does not entitle
an employee to be impaired at work; compromise their health
and safety or that of their co-workers or others; smoke in the
workplace and breach normal standards of performance, atten-dance
and security.
Where there is a dependence issue that is disclosed and known
– or ought to be known – by the employer given changes in the
employee’s behaviour or work performance, the duty to accom-modate
is to be applied in the same way that an employer would
accommodate any other disabled employee up to the point of
undue hardship.
APPLYING DISCIPLINE
Grounds for disciplining employees for workplace intoxication or
smoking include breach of employer policies directed at the con-duct
in question as well as breaches of the Cannabis Act and its
regulations and/or in Ontario, the Smoke Free Ontario Act and the
Occupational Health and Safety Act. As noted, proving intoxication
may pose to be a significant challenge if intoxication at work is the
breach in question.
In any event, workplace rules and policies must always be
enforced in a uniform, consistent and fair manner. Where progres-sive
discipline has been unsuccessful in correcting the misconduct,
when non-culpable conduct becomes culpable or where a seri-ous
incident has occurred, employers remain entitled to conduct
a summary termination of employment for just cause no different
than in any other set of circumstances where an employee fails to
meet and maintain performance expectations. n
Sheryl L. Johnson is a partner in the employment and labour law
practice at Fogler, Rubinoff LLP. dolgachov / 123RF Stock Photo
34 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL
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