Risks and responses for employers in the era of legalized cannabis use
By Michael F. Horvat
On Sept. 8, 2017, Ontario became the first province to announce its plan to sell and distribute recreational marijuana once it becomes legalized. The federal government’s timeline is to allow the sale and use of “recreational” marijuana by July 1, 2018, but each province can regulate distribution and limit availability. Ontario’s plan is to have government-run stores selling marijuana based on the province’s liquor distribution model,
prohibiting private sales and putting age restrictions in place, similar to those currently in place for alcohol. Consumption of legal cannabis will be prohibited in public spaces and workplaces (similar to anti-smoking bylaws).
Ontario is considering a government-only distribution regime, similar to liquor in the province, with certified producers supplying the product. It is not known how the legalization of recreational marijuana, and the corresponding loss of stigma or criminality attached to using the drug, will impact general public consumption. The distribution plan has also not yet placed controls upon or determined the “strength” of marijuana and the level of tetrahydrocannabinol (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 century 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 impairment, no agreement upon how long such impairment could last and, most troubling, no readily available test to measure either acceptable use or prohibitive impairment.
Therefore, a prohibition on smoking legal pot at the workplace 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 obligation to accommodate not on the basis of an addiction, but for a presumed ongoing medical need. The availability of “recreational” 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 legal obligations.
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, chronic 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 province 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, leaving 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 harassment-free workplace.
However, there is no indication from any level of government that cannabis will not be legal and readily available by next summer. Despite the unknowns, employers should begin planning now.
First, as with alcohol, legalization of recreational marijuana will not give employees the right to freely use marijuana in the workplace. 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 employees whose recreational use of marijuana has an adverse impact on their job performance.
Employers should review and amend existing workplace policies 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 require 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 potential 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.
Michael Horvat is a partner at Aird & Berlis.