Whether considering the regulation of recreational or medical cannabis in the workplace the starting point is the issue of impairment. The existence of actual impairment, as opposed to usage, is the consideration upon which juridical analysis takes place. Once recreational cannabis use is legalized, employers, except in very limited situations, will not be able to discipline employees purely for usage. However, employers will be able to regulate the recreational use of weed in the workplace as they can alcohol or smoking cigarettes and thus discipline individuals for failing to abide by these rules. For recreational users impairment alone will not suffice to allow for the imposition of sanctions. Unless the worker is in a safety sensitive position progressive discipline must be implemented first. Of course the rules must be known to the staff and the appropriate processes established and consistently applied to allow for discipline to be implemented. It is clear from the relevant judicial decisions, it is critical for the regulatory policies be in written form even for those in safety sensitive positions.
But this is only the tip of the iceberg. A host of other considerations apply to regulating pot once it becomes a legal product. Considerations relating human rights protections for those who use cannabis or its derivatives for medical purposes must be taken into account. An employer is obligated to accommodate medically prescribed use of cannabis to the point of undue hardship. In several jurisdictions, such as Ontario, there is a separate, proactive obligation on the part of employers to investigate the options necessary for and costs relating to accommodation. In these jurisdictions the mere failure to undertake such an investigation can incur liability and damages.
It doesn’t stop there. Even in situations where the use is purely recreational without a medical marijuana prescription and supplier there are additional possible pitfalls. If an employee demonstrates behaviours or an unexplained change in personality and/or diminished performance which would lead a reasonable person to suspect that he or she is suffering from a medical condition or has developed a dependency, an employer has an obligation to enter into a dialogue with the employee to determine whether that is the case. Failure to do so could prove problematic should disciplinary measures be implemented and it turns out that such a dependency actual exists.
The foregoing is not an exhaustive list. There are so many obligations on the part of an employer that failure to review existing policies or to create policies if none exist with appropriate H.R. and legal professionals is very risky (not to mention costly). Statistics from jurisdictions which have legalized recreational cannabis use indicate that legalization has increased consumption. They also show that additional usage has created additional headaches in terms of workplace control and regulation. As is the case with any new situation, those who have the tools to address the inevitable, foreseeable problems which arise are able to resolve them more efficiently thus saving precious time and money which can be used for better purposes.
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to employment lawyer, Shelley Brian Brown. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website or blog as such.
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