Legalization doesn’t permit pot use at work
Will the grass really be greener for pot smokers after the legalization of marijuana on Oct. 17? Employers, too, are pondering how legalization will impact the workplace.
Will Rob, a forklift driver and avid marijuana smoker, now be able to get high during his lunch break?
Will Stacey, an administrative assistant who has already received a disability accommodation to consume medical marijuana, be able to invite her work friends to join her for an afternoon smoke?
Will David, owner of a construction company that works on safety-sensitive sites, have to deal with employees showing up to work high and compromising workplace safety?
These are some of the questions Canadians have been left wondering. But marijuana smokers may well be disappointed, at least in the workplace.
Marijuana’s legalization will not open any floodgates allowing individuals to smoke whenever or wherever.
Put simply, it does not give employees the right to be impaired at work. Neither does it entitle them to smoke marijuana at work or in any public place. It permits users to smoke marijuana in their private residence, be it inside their homes, backyards, apartment units or balconies.
As was the case prior to legalization, employers are required to comply with their duty to accommodate disabled employed who use medical marijuana.
They will be accommodated in the same way accommodation is provided to other disabled employees who have been prescribed medication.
However, the duty to accommodate is not without limits. Significantly, employers can require that employees are treated by medication without hallucinogenic qualities.
A prescription for medical marijuana does not entitle an employee to be impaired at work, a prescription for medical marijuana does not entitle an employee to operate a vehicle while impaired, a prescription for medical marijuana does not entitle an employee to compromise his or her safety or that of others, nor does a prescription entitle an employee to smoke in the workplace — smoke-free laws apply to smoking marijuana in the same way they do regular cigarettes. And to the point, a prescription for medical marijuana does not entitle an employee to unexcused absences or late arrivals. Sounds simple, but since the start of this year, my law firm has received a plethora of inquiries regarding how these changes will impact their workplace. Employers aren’t the only ones with questions, it seems employees have been misled into believing that this change will entitle them to engage in behaviour that was previously unacceptable, such as smoking marijuana during breaks.
So, what is the solution? Employers should update their company policies, and provide training on workplace policy, to make sure workers clearly understand what they can and cannot do. Their policies for alcohol should immediately include marijuana as well.
Given the apprehensions that exist, it is important employers be able to prove that employees understood the policy before marijuana consumption can be used as a basis for dismissal.