LEGALIZATION OF MARIJUANA: IMPACT ON THE WORKPLACE - …

[Pages:3]Posted on: June 24, 2016

LEGALIZATION OF MARIJUANA: IMPACT ON THE WORKPLACE

The federal Government has announced plans to introduce legislation in the spring of 2017 to legalize marijuana in Canada. This means that Canadian employers now have less than a year to adapt their employment policies and procedures.

Employers will have to consider the legal impact of these changes on the following three broad categories of marijuana users:

1. Recreational Users: The legalization of marijuana will obviously have a significant impact on recreational users in their private lives. While their use of marijuana will no longer be a criminal offence, this won't give them the right to freely use marijuana in the workplace.

To address legalization of marijuana for recreational users, employers will have to amend some existing workplace policies and procedures. For example, policies which have characterized marijuana as an illegal drug, for the purposes of workplace drug testing protocols, will have to be amended to list marijuana in the category of legal intoxicants such as alcohol. Similarly, policies which may have previously applied to discipline employees for "off duty" illegal conduct may have to be amended to remove reference to marijuana use as an illegal activity.

However, while no longer illegal, workplace rules that apply to the possession and use of marijuana at work may (and in most cases should) continue to apply to all recreational users:

(a) Restrictions on smoking tobacco in the workplace, should apply equally to recreational smoking of marijuana; (b) Workplace health and safety policies which apply to prohibit use of alcohol in the workplace, should in most cases also apply equally to recreational use of marijuana; (c) Discipline of employees whose recreational use of marijuana may affect their job performance, should not be affected.

Simply put, the legalization of marijuana itself will not give recreational users the right to use and possess marijuana in the workplace any more than they would generally have the right to use and possess other legal intoxicants such as alcohol.

2. Medicinal Users: Medicinal users of marijuana are users that have been prescribed the use of marijuana

700 - 401 W GEORGIA ST. VANCOUVER, BC V6B 5A1 CANADA

TELEPHONE 604 682 3664

FAX 604 688 3830

RBS.CA

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by a health care professional to treat an illness or other medical condition. Their prescribed use of marijuana is currently legal, and as such will therefore not be directly impacted by the legalization of recreational use.

For employers, the prescribed use of medical marijuana raises issues of accommodation under the British Columbia Human Rights Code. Under this Code, employers are required to accommodate (to the point of "undue hardship") employees with a physical or mental disability. The use by an employee of marijuana under a medical prescription should therefore be treated by employers in the same way as use in the workplace of other prescription medications. However, the obligation to accommodate the employee's use of medical marijuana in the workplace must be balanced against other legitimate workplace concerns. For example:

(a) Workplace safety: In a safety sensitive workplace, it may not be possible to accommodate an employee whose cognitive and physical abilities could be impaired by the use of marijuana. In such cases the employer may then be required to assign the employee to other duties that don't present a safety risk. Alternatively, if no such alternate duties are available, the employer may have to grant the employee a medical leave of absence and reinstate the employee to their former position once they have recovered from their illness or medical condition; (b) Other policies: It is important to keep in mind that the medical prescription of marijuana does not give such users the unrestricted "right" to use marijuana in the workplace. Employer policies should therefore apply to users of medical marijuana in much the same way that such policies would apply to other prescription drug users. For example, a smoke free workplace policy should continue to apply, and medical users should generally be required to restrict their use to non-smoking variants of the drug, or alternatively smoke marijuana only in designated smoking areas.

3. Addicted Users: Addicted users of marijuana are users who have developed a physical or psychological dependency on the use of marijuana. Their use may have started either as recreational use or as medical use, but has progressed to the point where they have developed an addiction to the drug.

As with prescription use, employers may have some legal obligations under the BC Human Rights Code to accommodate users who have developed an addiction to marijuana. This is because the Code classifies addiction (whether to an illegal drug or a legal intoxicant such as alcohol) as an illness which employers are required to accommodate (again to the point of "undue hardship).

However, as with prescription use of marijuana, an employee addicted to marijuana does not have an absolute "right" to use their drug in the workplace. Concerns regarding workplace safety and performance will need to be considered. As with other addictions (whether to illegal or legal drugs) an employer generally

700 - 401 W GEORGIA ST. VANCOUVER, BC V6B 5A1 CANADA

TELEPHONE 604 682 3664

FAX 604 688 3830

RBS.CA

Page 2

will not have to tolerate impaired performance in the workplace, particularly where such impairment will endanger the safety of others (including the addict). One means of balancing these concerns may be to provide the addicted user with time off to attend a rehabilitation program.

The legalization of marijuana in 2017 will be a significant development in Canadian law. While marijuana itself will no longer be illegal, these changes will not give employees the unrestricted right to possess and use marijuana in the workplace. Over the next year, employers will be required to review and modify some of their workplace policies and procedures to adapt to these changes on the law.

700 - 401 W GEORGIA ST. VANCOUVER, BC V6B 5A1 CANADA

TELEPHONE 604 682 3664

FAX 604 688 3830

RBS.CA

Page 3

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