HAVE A PRECISE POLICY
As Heeney noted, many workplaces can limit marijuana consump-tion
in the workplace the same way they do alcohol. “We’ve been
telling clients that if they have a drug and alcohol policy in their
workplace, it’s probably something that, with minor modifications
to specifically reference recreational marijuana, can be compliant
once the new legislation is in place.
“Overall, it’s important to be clear: just because it’s legal doesn’t
mean it’s appropriate to be high at work.”
He recommends creating a fulsome policy that considers the
ricochet effects of recreational marijuana use on the workplace.
While your policy may stipulate that employees are not permitted
to be intoxicated at work, it’s possible for someone to have a drink
at lunch and not appear to be affected. The same may hold true
for an employee who consumes a small amount of marijuana via
odourless vaping. Heeney advises setting clear expectations about
what employees need to do to “be a participant in the workplace,”
which may include a zero-tolerance approach to alcohol or drug
consumption of any kind during the workday.
Whitten advises writing in the consequences of breaching the
policy. “Be clear: if you come to work stoned, you’re subject to dis-cipline.
You can progressively discipline and ultimately terminate
unless they show up with a doctor’s note. Right off the bat, you can
dispense with some of the disruption that could come with some-one
smoking a Marley-sized cannon in front of the office.”
And what about work functions outside the office? Many busi-nesses
entertain clients at lunch or after hours, and alcohol may be
a part of these social events. Heeney says policies will need to be
modified to address whether marijuana will be in the same cate-gory
as alcohol.
Finding boundaries may be complicated, as employees who
drink alcohol with clients may also want to consume marijuana.
“We don’t know for sure because there is no case law on it, but I
believe it will be okay to put limits on marijuana. I compare it to
having a policy saying that you cannot order ‘shots of alcohol’ at a
work event, but you can order wine.”
OFFER TRAINING AND HAVE CONVERSATIONS
ABOUT THE AMENDED POLICY
Even if you’re just updating an existing policy to include recre-ational
marijuana to the rules around alcohol, it’s important to
communicate the changes so there is no confusion about what is
acceptable in your workplace.
“The only way people will be held accountable for breaching a
workplace policy is if it’s clear. Just changing a policy and putting
it on your intranet site is not a good approach because you can’t be
sure everyone has read and understood it,” said Heeney.
“The easiest way to do ‘make sure’ is to have a training semi-nar
or a meeting with all employees and walk through a bunch
of examples. Is the consumption of marijuana acceptable at work
events? What if a client proposes it? What if a client is consum-ing
it? How are we going to manage this as a business? Walk them
through the process so they understand where the line is and
there’s no lack of clarity.”
WHAT ABOUT PRESCRIPTIONS?
Medicinal marijuana is a more complex issue in the workplace. If
an employee has a prescription for the use of medical marijuana
during working hours, the company needs to be advised and assess
what they can and can’t do to accommodate it.
“Legislation says that you have to accommodate medical condi-tions
in the workplace to the point of undue hardship. And there’s
no hard and fast rule – it differs from each workplace and situa-tion,”
said Whitten.
“One thing that has emerged is that if somebody is in a safety-sensitive
position and the marijuana impairs their ability to do
their job, such as operate heavy equipment, you’re entitled to
decline accommodation.”
Heeney points to a recent case that went to the Human Rights
Tribunal involving a window washer with a prescription for med-ical
marijuana whose job it was to clean high-rise buildings. It was
decided that the employer did not have a duty to accommodate
his need to consume marijuana on the job because it would inter-fere
with his ability to safely carry out his duties. This case helps
establish a precedent that allows companies to avoid accommodat-ing
employees whose work requires them to do physical work that
could jeopardize their safety if not carried out properly, including
driving a vehicle.
Whitten says an employer is not obligated to create another job
for an employee who cannot do their original job under the influ-ence
of medicinal marijuana. “The Tribunal has found that it is
beyond undue hardship to create a new position. However, if you
have another role you can put them in without firing someone else
or you can unbundle some of their duties to accommodate their
restrictions, you should explore further.”
This becomes trickier when an employee’s responsibilities don’t
include driving or operating heavy machinery. “This is the part
that the law is going to struggle with. I foresee people getting pre-scriptions
and the employer not knowing how to manage them,”
said Heeney.
He recommends working through an accommodations process
on a case-by-case basis with each individual, advising HR profes-sionals
to gather information about the prescription and find out
cover feature
“DON’T TRY TO MAKE
A ONE-SIZE-FITS-ALL
MEDICINAL MARIJUANA
POLICY OR YOU’LL FIND
YOURSELF AT THE HUMAN
RIGHTS TRIBUNAL.”
– DAVID A. WHITTEN
20 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL