Barring any delays, the recreational use of marijuana is expected to be legalized this summer.
Under the federal legislation, persons of at least 18 years, will soon be permitted to possess up to 30 grams of pot and grow up to 4 plants (under 1-metre tall). The sale and distribution of marijuana will be regulated by the government; so, anything to do with illegal marijuana (i.e., purchasing, possession, sales or distribution), will still be illegal.
With the legalization of recreational marijuana, we may see more of it not only in social scenarios, but also at work. To get ahead of upcoming changes and challenges, employers should create a clear employment policy that specifically concerns marijuana and the workplace. In making a policy on pot, employers should:
- Treat the use of marijuana like the use of any other intoxicating substance. An employer has the right to expect staff members to come to work sober. An employee has an obligation to do a job safely, and an employer may prohibit the use of marijuana before or during work.
- Consider making accommodations. Marijuana addiction is considered a disability under the Ontario Human Rights Code, and an employer must accommodate an employee who is addicted to marijuana. Similarly, some medical marijuana users must also be accommodated up to the point of “undue hardship”. In both cases, an employer must explore the reasonable accommodations they can provide. Any allowed accommodations must be balanced with safety.
- Enforce it. Ensure employees know the policy and understand what will happen if they breach it. Because it may be difficult to determine if an employee is “high” or “stoned”, it may also be difficult to fire an employee for suspected marijuana use. Most employers will not be able to carry out random or mandatory testing without providing reasonable cause to do so, so employers should be educated in how to spot and detect workers who may have breached a marijuana policy while remaining compliant with their obligations under the Ontario Human Rights Code. In addition to recognizing any physical signs of intoxication, employers should consider an employee’s performance, productivity and attendance when investigating a possible misuse of marijuana in the workplace.
If you have any questions or need help creating your own policy on marijuana, please contact an employment lawyer.