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WASTED AT WORK: The Legalization of Marijuana, and what to do about it.

By John Edward C. Hyde & Nicholas Goldhawk

Don’t overreact – 8 key questions for employers about pot legalization

Wednesday, October 17 will be an interesting day in Canada, when the 95-year old ban on recreational pot use will be lifted. While this geologic change to criminal law will happen overnight, it will still be some time until we see the full impact on Canadian workplaces.

This uncertainty has some employers itching for answers. Although the specifics are still yet to be “hashed” out in the case law, the best response to pot legalization is a reserved one that avoids the cardinal sin of workplace law – overreaction.

Here are 8 key questions employers might consider leading up to October 17:

1. Do we have any control over employees off company time?

Perceptions matter. That is why companies have the right to establish policies to protect their public image. Although marijuana’s legal status will be similar to that of alcohol, a good policy will recognize that public attitudes are slower to react. So, for instance, an employee posting a video of himself smoking pot on Instagram could be subject to discipline, particularly if he is readily identifiable as an employee of the company.

2. Can we fire an employee for possession in the workplace?

On lunch, your junior associate purchases a couple of grams from the nearby Ontario Cannabis Store. You catch him showing off his newly acquired “possession” to some coworkers in the lunch room. What do you do?

Employers may be surprised to hear that this might not even qualify as misconduct in many workplaces, absent a specific rule to the contrary. For that reason, you will want to make it clear to employees that they are to leave it at home.

3. Should we just let our employees spark up in the smoking area?

If your employees are sneaking off for a “4:20” break time, make sure to discipline them. Just because it’s legal, it does not mean it has to be tolerated in your workplace.

It is important to enforce this consistently. Once you have knowingly allowed your employees to light up on the clock, then you’ve condoned it in the legal sense, and you may give up your right to discipline employees for such activity.

4. Then can we fire an employee for lighting up on company property?

While getting “lifted” on break time is certainly cause for discipline, termination is a step further. Save your company a costly wrongful dismissal settlement by employing a robust progressive discipline scheme.

The appropriate discipline, however, depends on the circumstances. For instance, a strict zero-tolerance rule might be acceptable for a forklift operator or a kindergarten teacher, but it might be overkill for a dishwasher or data entry clerk.

5. Can we invite Mary Jane to the company party?

It’s probably not a great idea to allow marijuana at the company party. Remember that a company party is an extension of the workplace, and you are still responsible for your employees in attendance.

Many conscientious employers now prevent overserving alcohol at company events by limiting the number of drinks served. In contrast, keeping the party in low orbit while the marijuana is burning freely, could pose a significant challenge. In such instances, the company could be held responsible for the acts of your spaced-out partygoers. While pot users tend not to be the most violent group (except toward a bag of chips), driving while “baked” will still be very much against the law.

6. Can we fire employees who show up to work stoned?

Again, in most cases, first offences will probably only warrant a severe warning. You’ll want to make it clear in your policy that employees are to arrive fit for work. If any of your employees show up stoned, then send them home. Document the incident, question the employee next time they arrive at work and issue discipline as necessary.

One caveat, however, is that if your employee claims to be addicted to cannabis, you have a potential human rights issue on your hands. An addiction may qualify as a “disability”, for which employers have a duty to accommodate to the point of undue hardship.

7. Can we drug test suspicious employees?

Drug testing is a very sticky human rights issue in Canada, and it is only allowed in the narrowest of circumstances. Put it this way – if you did not have a drug testing policy before weed legalization, then you probably should not have one after – BUT YOU DO NEED A DRUG POLICY THAT ADDRESSES MARIJUANA USE.

One more thing to remember: certain industries have jobs that are safety-sensitive in nature. The legalization of marijuana DOES NOT prevent an employer from drug testing, when that drug testing is already permissible under the law. One example is the transportation industry, where companies are generally required to enforce reasonable suspicion, post-incident and random drug testing, if their employees, as a condition of employment, must cross the U.S. border (i.e. cross-border trucking). Simply stated – this will not change.

8. Will medical marijuana still be a thing?

Although perhaps fewer Canadians will feel compelled to seek out a prescription for their “chronic” illnesses after recreational marijuana is legalized, it will still be a possibility. Therefore, to the extent a doctor has prescribed marijuana to an employee, the Company still has a duty to accommodate the employee to the point of undue hardship.

WHAT CAN YOU DO NOW?

Again, don’t overreact. In many respects, your approach should be similar to dealing with alcohol and intoxication in the workplace. Alcohol has been legal since the repeal of the Ontario Temperance Act in 1927. Yet, employees can’t drink in the workplace. Employees cannot come to work intoxicated. Similarly, employees cannot smoke cigarettes in the workplace, even if they are addicted to tobacco. Take a common-sense approach. Be proactive, not reactive, and get your policies in place NOW. Begin educating your employees on your new policies, and October 17 will come and go quietly, as it rightfully should.

Contact the BT Legal Labour and Employment Group today.