Marijuana in the workplace: Employers need to be prepared and tread carefully
Employment lawyer, Shelley Brown, says companies need to prepare now to deal with increased use of marijuana in the workplace when marijuana for recreational use is legal.
The legislation is expected to be introduced in the spring of 2017 following a Task Force Report “Towards the Legalization, Regulation and Restriction of Access to Marijuana” by the federal government led by former Deputy Prime Minister, Anne McLellan.
Brown, says that employers will need to amend current policies and procedures and identify how drug use is handled, but most of all they will need to tread carefully on recreational use.
• Can simple usage be grounds for dismissal or disciplinary measures?
• To what extent can an employer restrict marijuana consumption?
• Can employers impose pre-employment testing
• Are random tests acceptable?
• What is the companies liability?
“Until recently,” says Brown, “even in safety-sensitive work environments, an employer’s entitlement to require employees to undergo random testing and to terminate for cause was not available to an employer unless proven that there had been a series of significant events justifying discipline or dismissal.”
“It is impairment, not usage, which is at issue,” he says. “If an employee lights up at lunch time, but is quite capable of performing her duties, the employer’s only realistic option is to terminate without cause upon providing reasonable notice or in pay in lieu of notice. That may change if THC breathalyzers are available.”
In a recent webinar for HR professionals by Canadian HR Reporter given by Mr. Brown, he noted that most of the questions and concerns centered around safety issues and random testing.
• Can you request a drug test if an accident occurs?
• If random testing is scheduled with 24-hour notice, is it still considered random?
• Our company has field workers who work at heights, confined spaces, heavy machinery and driving to and from work sites- how could we accommodate if there are no non-safety sensitive positions available. Must we allow them to smoke weed during the day when they could put themselves and others at risk?
These and other concerns will continue to be raised as employers, and employees deal with what the new reality could bring. However, if companies carefully develop a roadmap, there will be fewer blind alleys and detours for employers and human resources professionals to negotiate.
The bottom line: Anticipate. Prepare. Educate
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to Employment Lawyer, Shelley Brian Brown. They do NOT constitute legal advice or other professional advice, and you may not rely on the contents of this website or blog as such.