Legal weed day came and went. Many employers seem to be at a loss as to how to handle the legalization of marijuana. All employers should be updating their policies to reflect their expectations of the use of legal marijuana, be it recreational or medicinal.
Employers are not without recourse. Just because marijuana is now legal, there is no reason why an employer now has to allow it to be smoked or vaped in the workplace. The smoking or vaping of recreational marijuana is no different, and should be treated no differently, than the smoking or vaping of tobacco products or consumption of alcohol. Employers have the right to limit smoking and vaping at the workplace and can outright ban. Edibles are not yet legal and will be discussed at a later date.
Medical marijuana should be treated differently than recreational marijuana, but no different than any other prescription medications which may cause impairment in an employee. Employers have a duty to accommodate an employee who requires medical marijuana to treat a disability in the same way that that employer has to accommodate an employee that required prescription medication. Employers have to accommodate up to undue hardship, but that does not mean that they have to allow impaired employees in the workplace.
In Aitchison v L & L Painting and Decorating Ltd., 2018 HRTO 238 the Human Rights Tribunal of Ontario has re-iterated there is no absolute right to use medical marijuana at work. In that case the Employer had a zero tolerance policy, which is fairly standard in the construction industry. The employee did not request accommodation for their disability and instead personally medicated on the construction site without permission. He was terminated for having breached the zero tolerance policy. The Tribunal found the Employer had not discriminated against the employee.
Takeaway for employers
Having a zero tolerance policy will provide an employer with the tools to terminate an employee should that employee breach the policy, and not for failure to accommodate or disability. Employees should be signing off on any related policies at least yearly acknowledging they are aware of said policy. This will ensure that the employee, should he or she be terminated at a later date for breach of that policy, cannot claim he or she was actually terminated due to either failure to accommodate their disability.
The Ontario Human Rights Commission has released new policy guidance on human rights and cannabis to assist employers in navigating this new area. http://www.ohrc.on.ca/en/news_centre/ohrc-releases-new-policy-guidance-human-rights-and-cannabis The Employment Lawyers at OMH can also assist you in updating their policies so as to better equip you in handling this new area of legality.
Takeaway for employees
If you require accommodation due to a disability for which you require medical marijuana, or if you require accommodation for a dependency issue, the employment lawyers at OMH can assist you in reviewing and analysing your employer’s policies, preparing a plan for advising your employer of your requirement for accommodation, and assisting you through the process.