against revising pre-employment screening measures to
include drug testing on the basis of legalization alone.
However, employers are encouraged to review their
drug and alcohol policies and update them to include
references to marijuana and how it will be managed in
the workplace. Employers will need to consider how
employees that have been prescribed medical marijuana
will be managed versus employees that use marijuana
recreationally. Generally, for medical marijuana, it is
likely most effective to follow policy guidelines already
established for prescription drugs that may cause men-tal
impairment while at work. These may include
accommodations such as modified duties or a leave of
absence to ensure that the employee is receiving proper
treatment and that the employer’s duty to provide a safe
work environment is being discharged.
Similar to prescription drugs, employers can draft
into their policies that employees must provide a copy
of the authorization from a licensed physician prescrib-ing
medical marijuana, rather than simply rely on an
employee’s statement to that effect. In some cases, particularly in
the context of safety-sensitive workplaces and/or roles, employers
may require medical documentation confirming that there are no
alternative options to treat the employee’s condition. Where such
documentation is deficient, or disputed for other reasons, employ-ers
may wish to include in their policies the requirement that an
employee attend an independent medical examination to confirm
the lack of alternative treatment options.
For recreational use, existing policies regarding alcohol in the
workplace can be leveraged and modified to include marijuana.
These policies often restrict employees from imbibing while at
work and from reporting to work intoxicated or otherwise under
the influence. These same rules would apply to legalized marijuana.
Similarly, regulations for the use of marijuana during work-related
social events would also be addressed in the policy. Depending on
the workplace culture, some employers may approach marijuana
use at social events in the same way as alcohol – by permitting
responsible, legal use – while others may take a more conserva-tive
approach – saying that recreational use of marijuana at social
events is strictly prohibited. To that end, the Ontario Cannabis Act
will allow for recreational use of marijuana only in private resi-dences
and recreational cannabis will not be allowed in any public
place, workplace or in motorized vehicles.
As with other significant policies, they should be available at the
hiring stage and the employee should review the policies prior to
signing an offer of employment and be trained on the policy upon
commencing employment. Employers will also be well served by
training HR and managers/supervisors on the workplace policies,
new rules regarding marijuana and, particularly in safety-sensitive
industries, how to recognize signs of use and/or abuse and how
to respond. Other existing employees should receive training on
the policy once it is implemented or updated in the workplace.
Not only will this assist in preventing unintentional policy viola-tions,
but will also provide firmer footing for the employer should
disciplinary action or termination of employment result from the
employee’s violation of the policy.
Similarly, if terminating an employee for violation of the pol-icy,
whether sufficient cause exists will depend on the seriousness
of the offence as compared to the employee’s length of service and
record (i.e. whether the action taken is proportional to the viola-tion).
The fact that the violation involves marijuana as opposed to
alcohol or a prescription drug should not be viewed as a significant
factor. Further, employers should also examine their motivations
and determine whether they are stigmatizing an employee due
to the use of marijuana or if the use was for medical purposes,
as this may expose the organization to a discrimination claim by
the employee, pleading that the termination was motivated by the
employee’s disability or employer’s perception of disability.
Whether it’s hiring, firing or somewhere in the middle of the
employment lifecycle, employers are best served by thoughtfully
addressing the regulation of marijuana in the workplace via well
drafted policies, proper training and ensuring that any disciplinary
action taken for violation of such policies is balanced and unbi-ased.
When in doubt, look to the prior treatment of alcohol and
prescription drugs in the workplace and apply the guiding princi-ples
to the matter is a strategy that will serve employers well. n
Kathleen Chevalier is a partner practising in the Employment
& Labour Group at Stikeman Elliott LLP. Tamara Ticoll is
an associate practicing in the Employment & Labour Group at
Stikeman Elliott LLP.
Employers may require that an employee attend an
independent medical examination to confirm marijuana
as the only suitable treatment option
FOR RECREATIONAL USE, EXISTING
POLICIES REGARDING ALCOHOL IN THE
WORKPLACE CAN BE LEVERAGED AND
MODIFIED TO INCLUDE MARIJUANA.
ronstik / 123RF Stock Photo
40 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL