Tokin’ out of turn? The legal community offers its latest thoughts on marijuana at work

Many companies across the country continue to struggle with the far-reaching implications of legalized marijuana. Human rights, medical prescriptions, impairment, safety concerns, and the control of recreational consumption away from work are just some of the balls being thrown in the air when it comes to corporate policies.

Contractors and renovators are particularly sensitive to the issue of legalized marijuana use due to the inherent safety risks associated with most aspects of building and renovation. Here is summary of points raised and discussed in recent legal articles published on subjects of interest to both contracting companies and their workers.

Attempts to ban marijuana use away from the work site can be problematic

“I have a right to smoke my pot!”
That is essentially wrong, writes Megan Beal of law firm Fasken. “The recreational use of cannabis is not protected by human rights law unless there is an actual or perceived addiction.” In fact, Beal says that companies can create rules about pot use, even possession at work, no matter how small the amount. In fact, there is little difference now versus before legalization — showing up for work impaired from marijuana can be disciplined, just as for any other drug. There are no special rights associated to marijuana per se — it can be treated policy-wise just like alcohol or non-prescription drugs, writes Kyle Lambert of McMillan LLP.

Living the high life
Employees and employers need to understand the effects of marijuana. Bill Howatt, Chief of Research for Workforce Productivity at the Conference Board of Canada, and Melissa Snider-Adler, chief medical review officer at DriverCheck Inc., a medical testing and assessment services, recently summarized the complexity of today’s marijuana and the ways it can affect different individuals. They cite the quantity of consumption and the concentration of the psychoactive ingredient in cannabis — known as THC — as key factors. “Unlike alcohol, the effects and length of cannabis impairment are unpredictable and non-linear. Its effects vary from person to person, as does the length of time that it impairs,” they write. Howatt and Snider-Adler also mention variations in individual metabolisms and how the marijuana is taken — either smoked or ingested — as influential.

That can make company policies that attempt to ban recreational use of marijuana away from the work site somewhat problematic. “It involves a higher degree of intrusion that requires employers to provide a greater degree of justification,” writes Katie Comley of Miller Thompson LLP. “Before imposing a complete ban on off-duty consumption, employers should consider the nature of their operations, the nature of the employee’s work, and whether the off-duty consumption of cannabis affects the ability of an employee to properly discharge their employment obligations.”

“I have a marijuana prescription!”
Not much has really changed since legalization concerning medical marijuana. Like any other drug required for medicinal purposes, “Any individual seeking medical marijuana must obtain a medical certificate from a prescribed medical practitioner,” continues McMillan LLP’s Lambert. In other words, accommodation must be provided. However, that accommodation must be requested in advance by the employee, not assumed. Holding a medical certificate alone is not sufficient in itself. “It’s a two-way street.” Employers need to set out well-defined policies, and these policies must be “clear and known.”

At the same time, employers must balance the need for medicinal marijuana with safety issues. According to Lambert, any zero-tolerance policy imposed by the employer to achieve a predetermined safety standard must satisfy the following:  “The standard must be rationally connected to the performance of the job in question; the standard must be adopted in an honest and good faith belief that it is necessary and the standard must be reasonably necessary to accomplish the work – related purpose (i.e. keeping at-risk employees safe).”

“I was transferred because I use medical marijuana!”
Given those parameters, employers need to be aware that moving an employee into another role on site or within the company can have legal implications. Cases where accidents have occurred when marijuana was involved still have to pass judgement that the use of the marijuana was a factor. Even then, if the employee is willing to lower the dosage, the transfer or termination of an employee can be challenged.

“My company health plan doesn’t cover my marijuana prescription!”
Many health insurance providers are wrestling with the issue of whether to include cannabis among the other drugs eligible for cost reimbursement. However, Comley adds some important details about the actual requirement for employers to include medical marijuana as part of their health benefits offerings. Citing a recent case in 2018, she notes that a complaint against an employer for not providing medical marijuana due to a claim of bias against it was turned down. Comley writes, “The duty to accommodate (assessed on a case-by-case basis) may not require an employer to accept the risks of potential impairment from cannabis in a safety-sensitive environment. The decision to not reimburse employees for the cost of medicinal cannabis through an employee benefit plan is not necessarily discriminatory.”

“I am addicted to my marijuana!”
Individuals can form an addiction to cannabis. From an employer standpoint, that requires accommodation as a disability under human rights laws in Canada. Although safety requirements trump all, Faskin’s Megan Beal writes, “Disability is broadly defined and includes an addiction to drugs.  This means an employer has an obligation to accommodate, to the point of undue hardship, an employee who is addicted to recreational cannabis. The same procedural and substantive requirements apply to this type of accommodation as to any other disability.”

“Post-legalization, it is important to remember that employees do not have an unfettered right to cannabis consumption,” writes Janessa Mason of Alexander Holburn Beaudin + Lang LLP. That goes for medical as well as recreational use. Policies must be updated that include attention to safety, keeping within existing laws, and avoiding discrimination. At the same time, she writes, “Employers should review their practices for impairment testing to avoid unwarranted discipline, particularly for off-duty cannabis use which may not result in impairment at work.”

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