DIY MAN­AGE­MENT

The im­pend­ing le­gal­iza­tion of mar­i­juana in Canada means busi­nesses should look at their work­place im­pair­ment pol­icy. Em­ploy­ment lawyers J. Ge­of­frey Howard, a part­ner at Roper Greyell LLP in Van­cou­ver, and Cindy Zheng, as­so­ciate at Mcquar­rie Hunter LLP in

BC Business Magazine - - Contents - by Felic­ity Stone

The straight dope on deal­ing with mar­i­juana at work

5 FOL­LOW THROUGH

Send the mes­sage that if you see some­body breach­ing the pol­icy, you will en­force the con­se­quences, says Zheng, adding that ran­dom and manda­tory test­ing isn’t avail­able to em­ploy­ers with­out a rea­son­able ba­sis for de­mand­ing it. “So de­pend­ing on what your in­dus­try is, what does im­pair­ment look like, and when is it be­yond a triv­ial thresh­old?” In the case of mar­i­juana, Howard ob­serves, there’s no ac­cepted ef­fec­tive test for im­pair­ment. “But if facts come to your at­ten­tion that some­one may be im­paired by mar­i­juana in your work­place, then you’ve got to take steps,” he says, be­cause em­ploy­ers have a sig­nif­i­cant le­gal obli­ga­tion to keep the work­place safe for ev­ery­body.

1 GO BROAD

Con­sider a pol­icy cov­er­ing any­thing that might cause im­pair­ment and safety is­sues, ad­vises Zheng, who notes that “pro­hibit­ing non-medic­i­nal mar­i­juana is ac­cept­able, and that falls un­der the gen­eral obli­ga­tion that you have to show up to work able to do the job safely.” Howard adds that an em­ployer has a right to ex­pect staff to be sober when they’re work­ing. “It’s the same as some­one who recre­ation­ally drinks al­co­hol,” he says. “There’s no le­gal is­sue about pro­hibit­ing recre­ational mar­i­juana use by your em­ploy­ees, and cer­tainly prior to work­ing or dur­ing work. You’ve got an un­lim­ited abil­ity, if you wish, to sim­ply say no.”

4 EX­PLAIN THE POL­ICY

Make sure em­ploy­ees un­der­stand what the pol­icy is, what it means, what the Hu­man Rights Code says about med­i­cal and non-med­i­cal mar­i­juana, and their duty to dis­close that they’re us­ing it. “The duty to ac­com­mo­date is a two-way street, and where your safety or your judg­ment or your re­ac­tions could be im­paired, there is an obli­ga­tion on the em­ployee to dis­close,” Howard says. Zheng’s sug­ges­tion: “Cre­ate a sup­port­ive en­vi­ron­ment so that peo­ple dis­close will­ingly by them­selves be­fore an ac­ci­dent hap­pens.”

2 BE AWARE OF THE B. C. HU­MAN RIGHTS CODE

Ad­dic­tion is con­sid­ered a dis­abil­ity un­der the code, so an em­ployer must ac­com­mo­date an em­ployee who is ad­dicted to mar­i­juana, Zheng warns. It’s the same re­spon­si­bil­ity you would have to an al­co­hol ad­dict, ex­plains Howard: you don’t have to let them come to work stoned or high, but you will have to have to ex­plore what “rea­son­able ac­com­mo­da­tion” you can pro­vide. There are no de­tailed guide­lines re­gard­ing duty to ac­com­mo­date un­der the Hu­man Rights Code or in case law, so he rec­om­mends con­sult­ing ex­pe­ri­enced labour and em­ploy­ment lawyers.

3 KNOW HOW TO MAN­AGE MED­I­CAL MAR­I­JUANA USE

If an em­ployee has a dis­abil­ity for which they’re us­ing mar­i­juana as a med­i­ca­tion, un­der the Hu­man Rights Code the em­ployer must also ac­com­mo­date them up to the point of “un­due hard­ship,” Zheng says. The em­ployer is en­ti­tled to ver­i­fi­ca­tion from a med­i­cal doc­tor that this is a le­git­i­mate treat­ment for a real con­di­tion that meets the test of dis­abil­ity, points out Howard, and, as with ad­dic­tion, needn’t ac­cept what­ever the em­ployee wants to do. “If some­one’s tak­ing a strong opi­oid-based painkiller, you have the same is­sues and the same con­cerns,” he says.

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