Lawyer suggests employers review drug, alcohol policies
Even with impending legalization of recreational cannabis, laws and regulations surrounding drug use and the workplace are unlikely to change, says one business lawyer.
Claire Milton, who works with the Halifax-based firm Boyneclarke, said she’s been fielding lots of calls about how legalization will impact workplace policies and drug testing.
“A typical question is ‘Oh my god, marijuana’s going to be legal. Do I have to put up with all my employees smoking weed all day?’ and the answer is no, you don’t,” she said.
Milton said most companies already have strict policies about drinking on the job and many already include recreational drugs in those policies. With legalization on the horizon, Milton said, it’s a good opportunity for employers to dust off and review their drug and alcohol policies to include marijuana.
When it comes to drug testing, Milton said in Canada employers are free to pre-screen potential employees for any drugs they wish as a condition of employment, and that is unlikely to change with marijuana legalization.
Although you generally don’t see banks or retail outlets pre- screening for drug use — it’s more common in jobs where machinery is used or where safety is a major concern — Milton said an employer could screen for anything, from hard drugs to marijuana or alcohol.
“Employers can set standards for workplace safety or culture,” she said.
“There’s nothing that says an employer can’t choose an employee based on other factors that are not protected under human rights legislation.”
Once someone is already employed, Milton said, employers in Canada are not allowed to just randomly screen workers without reason as it violates privacy, and mandatory drug screening for employees is only allowed under very specific circumstances, like in a safety-sensitive workplace or if there has recently been some sort of workplace accident.
Even if a person has a prescription for marijuana, or any other drug that could inhibit alertness or job function, an employer has the right to prohibit its use at work.
“Medical use is already legal and employers do have to accommodate that to the extent it does not cause an unreasonable hardship in the workplace,” Milton said. “But if an employee’s use of marijuana is affecting their ability to do a job safely, the employer doesn’t have to accommodate that.”