determined the “strength” of marijuana and the level of tetrahydro-cannabinol
(THC), which is the main psychoactive component in
cannabis that provides the “high,” that would be available for sale.
Marijuana occupies a position unique from alcohol and those
psychoactive drugs, which would remain illegal. Marijuana is not
a prescription drug, and remains a Schedule II drug under the
Controlled Drugs and Substances Act, but its road to legalization
began because it had been promoted as a medicinal treatment
(not cure) for a wide variety of ailments. It has been almost a cen-tury
since a doctor prescribed liquor for “medicinal purposes.”
However, unlike liquor, there is no generally accepted prohibitive
level of THC that science can agree upon that qualifies as impair-ment,
no agreement upon how long such impairment could last
and, most troubling, no readily available test to measure either ac-ceptable
use or prohibitive impairment.
Therefore, a prohibition on smoking legal pot at the work-place
is going to be cold comfort to Ontario businesses left with
one of the practical problems of the drive to legalized marijuana
– how do you accommodate the use of a known addictive drug
when the medical community cannot agree on how and/or how
long the drug’s use can impair the user? Marijuana does have one
important and troublesome similarity with alcohol, which is the
potential for abuse and addiction.
The broadly accepted misconception that cannabis is the same
as other prescription drugs could provide an employee with a veil
of medical necessity, placing the employer under a legal obliga-tion
to accommodate not on the basis of an addiction, but for a
presumed ongoing medical need. The availability of “recreation-al”
marijuana could also result in those currently using the drug
(with or without authorization) for medicinal purposes to begin,
in effect, self-medicating or supplementing their current usage.
Employers will quickly feel the squeeze of potentially opposing le-gal
Currently, accommodation for addiction is often time away
from work to complete an addiction treatment program (i.e.,
a program to end the person’s use of the addictive substance).
Accommodation for the medicinal use of marijuana may not
have an end date. If the employee states that his or her marijuana
use is not addictive, but is necessary to treat, for example, chron-ic
pain, how does the employer balance its duty to accommodate
the underlying physical disability with the impact the drug has
on performance and safety when it is being used for the ongoing
“treatment” of that malady?
There is no doubt that there will come a time when an employee
approaches his or her manager and states that he or she is self-medicating
from the local “Cannabis Control Board of Ontario”
for a chronic condition. Will the lack of “prescription” even matter
if the underlying physical ailment is medically supported in a prov-ince
where legalized cannabis is sold through the government? It
is unlikely that an employer will actually be able to direct how an
employee chooses to treat his or her ailment.
Without detailed legislation and regulations, or any judicial
comment, there are more questions than answers right now, leav-ing
employers to balance their legal obligation to accommodate an
employee with a disability or medical needs to the point of undue
hardship with their concurrent obligation to provide a safe and ha-rassment-
However, there is no indication from any level of govern-ment
that cannabis will not be legal and readily available by
next summer. Despite the unknowns, employers should begin
First, as with alcohol, legalization of recreational marijuana will
not give employees the right to freely use marijuana in the work-place.
Employers may continue to expect their employees to show
up sober and ready to work. Subject to medical conditions (and
addiction), employers will still be entitled to discipline employ-ees
whose recreational use of marijuana has an adverse impact on
their job performance.
Employers should review and amend existing workplace poli-cies
and procedures to address legalized marijuana. Marijuana use
by employees can no longer be prohibited on the sole basis of its
illegality. However, employers can still restrict the possession of
marijuana in the workplace.
Employers with safety-sensitive workplaces and jobs should
review their accommodation policies; encourage and even re-quire
disclosure by employees of any use of or addiction to
marijuana; and have processes in place for addiction treatment,
accommodation and return to work. Review and clarify the poten-tial
disciplinary consequences of a breach of the policy and failure
to disclose necessary information. Consider and review any drug
testing protocol, particularly for safety-sensitive positions. Finally,
provide appropriate training to employees regarding the policy
and to managers and supervisors who will have to monitor and
implement the policy. n
Michael Horvat is a partner at Aird & Berlis.
policies & procedures
WITHOUT DETAILED LEGISLATION AND
REGULATIONS, OR ANY JUDICIAL COMMENT,
THERE ARE MORE QUESTIONS THAN ANSWERS
RIGHT NOW…DESPITE THE UNKNOWNS,
EMPLOYERS SHOULD BEGIN PLANNING NOW.
36 ❚ OCTOBER 2017 ❚ HR PROFESSIONAL