While the possession of marijuana in Canada remains unlawful under the Controlled Drugs and Substances Act, its use for medical purposes is permitted under the Regulations to the Act. The Canadian government has also announced its intention to legalize the substance in the near future for non-medical, recreational use.
What does this all mean for Canadian employers?
In the context of non-medical use, marijuana (whether legal or not) may continue to be treated in substantially the same way as the use of alcohol under an organization’s Workplace Drug & Alcohol Policy. Employers will have the right to prohibit the use of marijuana during work hours, and to further prohibit attendance at work while impaired. Violation of these prohibitions can be made the subject of progressive discipline. In appropriate cases, such violations could result in termination of employment for just cause.
Where an employee’s use of marijuana amounts to a physical or psychological dependency, however, such addiction will likely constitute a “disability” under provincial and federal human rights legislation, triggering the employer’s duty to accommodate the employee’s disability.
There have already been a number of Canadian arbitration decisions where unionized employers have been required to reinstate employees fired for drug use, based on the employer’s failure to properly address and accommodate the employee’s substance addiction as a disability.
With the relatively recent advent of legitimately recognized medical marijuana use, the situation for employers is now further complicated.
On the one hand, employers must have policies in place permitting the medical use of marijuana in the workplace where supported by appropriate medical evidence, as a form of accommodation.
On the other hand, employers continue to have the right to prohibit impairment on the job, particularly in safety sensitive positions. It will not always be easy to balance these competing interests.
Where an employee claims medical need for marijuana, the request will have to be treated in the same manner as any other request for medical accommodation.
As part of the inquiry employers should, at a minimum, require not only medical proof of prescription, but also sufficient medical indication that the employee actually has to ingest marijuana during working hours, together with sufficiently detailed information regarding the frequency, volume and method of ingestion relating to such prescribed medical use. This information will be important not only for the purpose of structuring appropriate accommodation, but also possibly for the assessment of impairment.
Assessment of impairment will very likely pose one of the greatest challenges in the crafting and implementation of policies concerning medical (and possibly non-medical) marijuana use in the workplace.
Unlike alcohol, marijuana can be detected in the bloodstream days or even weeks after ingestion, but levels of TCH (the active ingredient in marijuana) do not correspond with levels of impairment. This means that there is currently no medical test that accurately or reliably indicates the level of a person’s impairment due to marijuana use.
Furthermore, current human rights law in Canada does not permit pre-employment or random testing for drug or alcohol use or impairment. In some jurisdictions like Ontario, “lawful” testing is limited to “reasonable cause” or “post-incident” testing, where safety-sensitive positions are involved.
Time and litigation will provide employers with more guidance as to the scope of their right to require testing and to deal with issues relating to real and perceived impairment in the workplace due to marijuana use.
In the meantime, Canadian employers should be reviewing and updating their existing framework of policies) to adequately address issues relating to both the medical and non-medical use of marijuana at work.
To start, employers should:
- update drug & alcohol policies to specifically address marijuana use (or resulting impairment) at work, including a duty to disclose (and not to conceal) any use of marijuana in the workplace, as well as the consequences of non-compliance;
- modify human rights and accommodation policies to specifically deal with issues relating to marijuana dependency;
- introduce protocols for the accommodation of medical marijuana use at work, including the requirement for qualified proof of prescription and appropriate medical indication of necessary ingestion at work;
- establish a framework for testing for impairment, including triggering circumstances and testing methods, possibly including mandatory independent medical examination in appropriate circumstances; and
- train management and supervisory staff on the application of all policies relating to medical and non-medical use of marijuana in the workplace.