A key component of the Federal Liberal party’s election mandate is the legalization of recreational marijuana. While it’s believed that a fully functional legislative and regulatory scheme ending the prohibition of cannabis will not be ready for some time, the prospects of legalized cannabis in the workplace has some companies feeling a little dazed and confused.
But cannabis, at least in some instances, is already legal and is already in our workplaces. In fact, in 2014 it was estimated that there were 40,000 people in Canada with valid “authorizations to possess”, a number that has been growing rapidly over the past years and is expected to hit as many as 400,000 by 2025.
So how should companies and HR departments respond to this growing trend?
In my opinion, legalized marijuana does not change anything, and a well established analysis that already exists under an employer’s common law duties and human rights law can be easily applied. Here are a few guiding thoughts to walk us through this process:
1. Distinguish between recreational marijuana and medical marijuana
This first point is essential. In the vast majority of workplaces, there is no excuse for someone to be attending to work impaired by recreational cannabis, just as there is no excuse for someone to be attending to work impaired by alcohol or some other drug.
Employees have a legal and contractual duty to show up for work sober and to be able to perform their job assignments competently, productively and safely. Any impairment that cannot be justified by a disability should immediately be viewed as a serious misconduct and subject to discipline. The legalization of recreational cannabis does not change this.
Some users of recreational drugs may in fact be dealing with addiction issues. Addictions are also recognized as a mental disability and may also engage an employer’s duty to accommodate.
2. Don’t stereotype medical cannabis users
Users of medicinal marijuana are not pot-heads, junkies or drug addicts. They are people with disabilities seeking treatment to an ailment or a symptom. Just because cannabis can be misused, does not mean that it will be misused.
Keep in mind that there are many different types of cannabis strains, and not all strains will have the same affect on their users. Some strains are very high in the psychoactive ingredient THC, while other strains will have a very low THC content and will be very high in CBD, a chemical compound used for therapeutic purposes. If someone is using a low THC / high CBD strain for its calming and antipsychotic properties, they may experience little or no high at all.
It’s also important to remember that there are already plenty of prescription drugs that are fully capable of creating impairment if misused. Opioids such as OcyContin, morphine, and Percocet, as well as stimulants such as Ritalin, are all prescribed by doctors and have the potential to be abused. So, just as certain precautions may need to be taken for employees being treated with these drugs, the same should be applied to medical marijuana.
3. Gather the information you need
Recognizing that medical cannabis users are persons with disabilities, employers will have a legal duty to accommodate them in the workplace. However, before accommodation can even be considered, employers need to gather important information.
Unfortunately, impairment from cannabis is difficult to measure and can be very subjective. Recognizing this, employers are advised to request information from the employee’s health care providers (including the family physician, the prescribing doctor, and possibly specialist physicians). Ultimately, employers will want to assess the degree of impairment during working hours when dosage, time of consumption and the method of consumption are considered. If the prescribing doctor is incapable of providing an opinion on these issues, it may be necessary to seek an independent medical opinion from someone who can.
4. Explore accommodation options
Recognizing that medical cannabis is used to treat a disability or the symptoms of a disability, users receive the same protections as other persons with physical or mental disabilities under human rights legislation. This means that employers have a duty to accommodate medical cannabis users to the point of undue hardship.
In many cases, medical marijuana may require little or nothing by way of accommodation. For instance, if someone consumes marijuana before bed for pain relief and as a sleep aid, they may not need anything from their employer provided they awake sober and ready to work. Similarly, if an office worker suffering from schizophrenia or epilepsy consumes a high CBD, low THC strain of cannabis as an anti-psychotic, they may not require any accommodation apart from being able to consume their product on their scheduled breaks.
Where prescription cannabis use becomes more complicated is with safety-sensitive positions. If someone operates a forklift, heavy equipment, works in construction or in manufacturing, impairment concerns will be very real as the safety of the individual and of co-workers may be placed at risk. In those instances, the employer will have to explore accommodation options and may be able to claim that the duty to accommodate creates an undue-hardship on the company.
Note that a company drug and alcohol policy will not waive the duty to accommodate medical marijuana users.
While a lot of HR people may have concerns with cannabis legalization, in the grand scheme of things the end of prohibition does not change anything. Even if the plant is legal, it is still a serious misconduct for recreational users to attend to work impaired, just as it would be for an employee to attend to work drunk.
As for medical users, the same accommodation rules apply to them as they would to anyone presenting with a disability that interferes with work related functions or responsibilities. When this arrises, the employer is encouraged to apply a pragmatic, balanced and responsible approach to the accommodation while maintaining active dialogue with the worker.
In some circumstances, an employer may claim undue hardship. Because of the potential human rights implications of claiming undue hardship, employers are strongly advised to get legal advice prior to taking such a position.
If you or your business has any questions around marijuana legalization in the workplace or the duty to accommodate, one of Kent Employment Law’s lawyers would be pleased to assist.