After the smoke has cleared
By Michael Horvat
We are about three months into the legal sale and use of recreational marijuana in Ontario since the government instituted online sales on Oct. 17, 2018. While the Ontario government
has not completely settled on a full retail strategy for at-the-counter sales of cannabis and cannabis products, the smoke has at least cleared somewhat for employers as they deal with a new reality of addressing (legal) cannabis use in the workplace, alongside long understood (and generally accepted) policies relating to alcohol and prescription drugs in the workplace.
The guiding principle for most employers dealing with the new reality is that employees must be “fit for work.” This is still an imprecise phrase in terms of what constitutes or is accepted as impairment from cannabis use that would physically and/or mentally prohibit a particular employee from continuing to work. Provincial governments and law enforcement, for example, are likely to struggle over the coming months on how to test for cannabis impairment in a manner (and level of use) that is both reliable and publicly understood and accepted. It is quite likely that there also could be changes in standards and thresholds as societal and political acceptance and understanding as to cannabis impairment increases (not too dissimilar to the societal change towards alcohol use, drunk driving and the ultimate acceptance of RIDE testing a generation earlier).
Employers, and in particular human resources departments, have come to realize that most, if not all, the tools necessary to address the legalization of cannabis are already in their HR policy tool box. All workplaces have (or should have) policies in place which address alcohol use in the workplace, as well as disclosure obligations for prescription and over-the-counter medication use. Therefore, whether the use of cannabis and cannabis products by employees is recreational or for medical purposes with authorization from a healthcare professional, long-existing practices dealing with impairment in the workplace have not changed and are equally applicable.
After the immediate concern over what to do if a group of employees suddenly decides to share a joint (if that is still a thing) during a smoke break or determining if and how employees could be legally tested and screened (even though their workplace has never even had a breathalyzer onsite, let alone anyone trained to use it or take samples), many have come to realize that this change in law has provided them with the opportunity to sharpen existing policies, train and re-communicate expectations for conduct, fitness and performance to their employees.
The first misconception that must be set straight by human resources is that the legalization of recreational marijuana has not given employees the right to freely possess or use marijuana in the workplace. Employers continue to have the right to control their workplace and can prohibit the storage of marijuana in an employee’s locker in the same way that they prohibit an employee from keeping liquor in their locker.
Legalization of recreational marijuana has most certainly not permitted nor provided a valid excuse for employees to be or attend at work impaired. Even in circumstances of demonstrated and disclosed medical authorization to use or possess cannabis, employers are still entitled to determine if such valid medicinal use, and the associated risk of potential impairment while on the job, can be accommodated. When considering accommodation, the employer is still entitled to look at a myriad of factors, such as time of use, duration of use, quantum of use, nature of duties and the nature of the workplace, to name just a few. Employers must also consider the safety of all employees to determine if continued attendance at work is even possible in the circumstances.
Human resources departments have generally used legalization to reinforce and retrain employees on existing policies prohibiting possession and impairment relating to drugs and alcohol in the workplace (and filling gaps as necessary). More importantly, it has allowed employers to emphasize to their employees their legal obligations to disclose use (medical or addictive) and limit accommodation (if applicable) only to those demonstrating a medical need or addictive concern (which allows them the time to enter a program to end any future use of the drug).
Concern over widespread drug testing in Canada has been alleviated, at least until there is greater knowledge and support (and ease of use) for cannabis testing methods and greater knowledge and acceptance of the use levels necessary for demonstrating impairment. In part, there is also a greater confidence that any employer which has had to address alcohol use (recreational or addictive) in the workplace is equally well equipped to deal with the new drug on the block.
Overall, employers have overcome the anxiety of the unknown that accompanies such a dramatic legal change. HR professionals can rely upon their existing tools and policies addressing impairment, accommodation and prohibition to adapt to the new reality. These policies improved and more direct, provide an additional opportunity for employers to set down firm expectations of disclosure of use and performance in the workplace.
Michael Horvat is a partner in the Workplace Law Group at Aird & Berlis.