Impending legalization of recreational marijuana use has many employers wondering about impairment, poor productivity and attendance, and unsafe conditions in their work environment.
Drug Testing in the Workplace
The Ontario Human Rights Commission recognizes that workplace safety is a legitimate goal for employers. However, workplace drug testing should only be adopted if there is a bona fide occupational requirement for doing so. This means that the testing practice is:
- adopted for reasons logically connected to the job’s performance
- adopted in good faith to achieve a legitimate work-related purpose
- reasonably necessary to achieve this purpose
Employers must therefore be able to demonstrate that it is not possible to accommodate an employee’s recreational or medicinal marijuana use without incurring undue hardship on their business.
When it comes to drug and alcohol testing, tests should be done to measure current impairment, not act as a deterrent.
One of the difficulties facing businesses who may have legitimate requirements for their employees to undergo drug testing is that there is currently no clear consensus on what constitutes marijuana impairment. Unlike with breathalyzers for alcohol, there are no precise tests for measuring current levels of impairment from marijuana use.
Urine tests can pick up use that happened weeks earlier and blood tests only reveal use in the past few hours. Neither of these tests can quickly measure current levels of impairment.
Discrimination, Human Rights and the Duty to Accommodate
With the legalization of recreational marijuana, employers will have to balance competing obligations to accommodate medical marijuana use and cannabis addiction, and to ensure the health and safety of all in their workplaces.
As with any other prescribed medication or addiction (which is considered a disability under human rights law) employers have a duty to accommodate the needs of their employees to the point of undue hardship.
Accommodation policies can largely mirror existing policies for prescription medications that can have an impairment effect. Similarly, rules regarding the recreational use of marijuana in the workplace, during working hours and outside the workplace can mirror your policies on alcohol consumption.
Some options for accommodating an employee’s medical marijuana requirements include:
- moving employee out of safety-sensitive positions
- providing more frequent breaks
- offering alternative scheduling or duties
A prescription for medical marijuana does not entitle an employee to be impaired at work or compromise the health and safety of themselves or others. Nor does is override smoke-free laws or allow for unexplained absences or late arrivals.
Policies and Procedures
Employers may have to review and update their workplace policies and procedures to address the legalization of recreational marijuana use.
The good news is, the legalization of recreational marijuana isn’t likely to require you to make radical changes to your existing workplace policies and procedures. Fulfilling your human rights obligations while keeping your workplace safe and productive should not pose a significant challenge to most employers.
You will no longer be able to include cannabis use as an illegal off-duty activity and you likely will no longer be able to restrict employees’ possession of it in the workplace. However, employers will be able to take progressive disciplinary actions for an employee’s failure to follow workplace policies.
Impairment at Work
Employees do not have the right to be impaired at work. You can still expect workers to show up sober and ready to work.
Employers will be able to set rules regarding marijuana use similar to those they may already have regarding alcohol consumption. Furthermore, employers can prohibit the use of marijuana at work and during working hours.
KCY at LAW can Help
With all these changes and so much uncertainty, employers may be unsure of their rights when it comes to maintaining a safe and drug-free work environment. Due to the conflicting nature of existing case law, employers should consider having their policies reviewed by an experienced employment lawyer. To book your consultation with KCY at LAW, call 905-639-0999