National Post

Pot law’s impact on the office

Employers can insist on sobriety, productivi­ty

- Howard Levitt Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p. m. on Newstalk 1010 in Toronto. hlevitt@ levittllp. com

Wit ht he imminent legalizati­on of marijuana, some reaction as to the alleged repercussi­ons to Canada’s employers border on the hysterical. Some fear that employees will be hovering 10 metres of office entrances getting in a joint on their way to or during work. Others worry that the federal government has just provided Canadian employees with a licence to attend work under the influence.

The concerns are exaggerate­d.

Other than for medicinal uses, the legalizati­on of marijuana merely puts it on the same footing as the treatment of alcohol in the workplace.

Employers continue to have the right to manage their workforce and insist that their employees are productive.

They can continue to prohibit employees from smoking marijuana during working hours and being at work intoxicate­d.

The degree of discipline will be informed by the nature of the job. Employees in safety- sensitive positions such as pilots, drivers or heavy- machine operators, can legitimate­ly be warned that performing their jobs with marijuana in their system will result in dismissal for cause.

Whereas even a first off ence is generally cause for discharge for employees whose intoxicati­on endangers the public, progressiv­e warnings are required for employees for whom drug use will only render them less effective. That is no different from the legal approach to other factors inhibiting productivi­ty.

What about employees who are prescribed marijuana as medication? That provides no licence to override workplace safety concerns. The duty to accommodat­e those employees does not require permitting them to attend work impaired. Should the marijuana use impinge upon public or employee safety, the employer may reassign them to positions where they pose no risk, at concomitan­t remunerati­on.

If an employee can demonstrat­e a legitimate need for medicinal marijuana, an employer can insist that they not damage the company’s public image by conspicuou­sly toking up at the entrances to its offices.

What about those employees who have a genuine addiction t o marijuana? Must the employer permit them to come to work impaired?

Again, the answer is no. But they must accommodat­e the employee by permitting them — through disability coverage or unpaid l eave, depending on the nature of the group benefit coverage — to attend rehabilita­tion. Failure to take steps toward recovery or by dropping out of drug rehab may, only then, be cause for dismissal.

The new legislatio­n will have no impact on the right of employers to insist upon sobriety in their workplace.

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