Legalization of Marijuana and the Workplace

February 16, 2018

July 1, 2018 is the date that recreational marijuana will become legal across Canada. At one point this may have seemed so far away, but we are now in 2018 and only four months away.

The obligation to accommodate the use of medical marijuana arises under the Ontario Human Rights Code, which protects individuals in the workplace from discrimination on the basis of disability. As with other types of prescription medication, this includes accommodating a disabled employee’s prescribed medical marijuana use. This obligation does not extend to employees who use marijuana for recreational purposes.

An employer’s duty to accommodate an employee’s use of medical marijuana must be considered alongside to its obligation to maintain a safe workplace under Occupational Health and Safety Act. Employers must ensure the safety and welfare for all its employees.

For example, a prescription for medical marijuana does not entitle an employee:

  • To compromise their own safety
  • To compromise the safety of others
  • To smoke in the workplace (as anti-smoking laws apply to smoking marijuana as well)
  • To be impaired at work

What should employers do to prepare for accommodation requests related to medical marijuana?

Employers should ensure that their drug use policies are written broadly enough to deal with medical marijuana, and precisely enough to define terms such as “impairment”, “intoxication” and “under the influence”.

Policies should set the boundaries of what will be considered acceptable use of prescription medication (including marijuana) in the workplace, and the protocol for employees reporting the use of (and/or being under the influence of) such medication during working hours.

Employers should also ensure that their policies address the disciplinary consequences of policy breaches, including for example, the sharing and/or selling of medical marijuana (or any prescription medication or illicit drug) in the workplace.

When faced with a request to use or possess marijuana in the workplace, at a minimum employers should consider the following factors: 

  • Does your employee have a disability-related need to consume medical marijuana?
  • Would a refusal to allow that employee to use or possess marijuana have the effect of creating a substantive disadvantage for that employee by prohibiting him/ her from consuming medical marijuana?
  • Is that prohibition based on health and safety considerations, or other considerations that are rationally connected to the workplace?

Employers should place a high priority on making changes to their workplace policies. Medical marijuana must be treated like any other prescription medication.

Like other medical drugs, a prescription for marijuana does not give the employee a green light to use it in the workplace. Both the employee and employer are subject to certain obligations with regards to the use of medical marijuana in the workplace. In order for both employers and employees to properly understand their rights and responsibilities, and to avoid unnecessary litigation, it is important to identify the various ways that the use of medical marijuana impacts the employer-employee relationship.

Contributed by Zeina Agha
Administrative Assistant at PTC Recruiting

For more information about Zeina click on this picture


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