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Marijuana and the Canadian workplace

Workplace Solutions
|Written By Peter Straszynski
Marijuana and the Canadian workplace

While the possession of marijuana in Canada remains unlawful under the Controlled Drugs and Substances Act, its use for medical purposes is permitted under the Regulations to the Act.

The Canadian government has also announced its intention to legalize the substance in the near future for non-medical, recreational use.

What does this all mean for Canadian employers?

In the context of non-medical use, marijuana (whether legal or not) may continue to be treated in substantially the same way as the use of alcohol under an organization’s Workplace Drug & Alcohol Policy. Employers will have the right to prohibit the use of marijuana during work hours, and to further prohibit attendance at work while impaired. Violation of these prohibitions can be made the subject of progressive discipline. In appropriate cases, such violations could result in termination of employment for just cause.

Where an employee’s use of marijuana amounts to a physical or psychological dependency, however, such addiction will likely constitute a “disability” under provincial and federal human rights legislation, triggering the employer’s duty to accommodate the employee’s disability.

There have already been a number of Canadian arbitration decisions where unionized employers have been required to reinstate employees fired for drug use, based on the employer’s failure to properly address and accommodate the employee’s substance addiction as a disability.

With the relatively recent advent of legitimately recognized medical marijuana use, the situation for employers is now further complicated.

On the one hand, employers must have policies in place permitting the medical use of marijuana in the workplace where supported by appropriate medical evidence, as a form of accommodation. On the other hand, employers continue to have the right to prohibit impairment on the job, particularly in safety-sensitive positions. Where an employee claims medical need for marijuana, the request will have to be treated in the same manner as any other request for medical accommodation.

As part of the inquiry, employers should require not only medical proof of prescription but also sufficient medical indication that the employee actually has to ingest marijuana during working hours, together with sufficiently detailed information regarding the frequency, volume and method of ingestion relating to such prescribed medical use.

Assessment of impairment will very likely pose one of the greatest challenges in the crafting and implementation of policies concerning medical (and possibly non-medical) marijuana use in the workplace.

Unlike alcohol, marijuana can be detected in the bloodstream days or even weeks after ingestion, but levels of THC (the active ingredient in marijuana) do not correspond with levels of impairment. This means that there is currently no medical test that accurately or reliably indicates the level of a person’s impairment due to marijuana use.

Furthermore, current human rights law in Canada does not permit pre-employment or random testing for drug or alcohol use or impairment.

Time and litigation will provide employers with more guidance as to the scope of their right to require testing and to deal with issues relating to real and perceived impairment in the workplace due to marijuana use.

In the meantime, Canadian employers should update drug and alcohol policies to specifically address   marijuana use (or resulting impairment) at work, including a duty to disclose any use of marijuana in the workplace, as well as the consequences of non-compliance; modify human rights and accommodation policies to specifically deal with issues relating to marijuana dependency; introduce protocols for the accommodation of medical marijuana use at work, including the requirement for qualified proof of prescription and appropriate medical indication of necessary ingestion at work; establish a framework for testing for impairment, including triggering circumstances and testing methods, possibly including mandatory independent medical examination in appropriate circumstances; and train management and supervisory staff on the application of all policies relating to medical and non-medical use of marijuana in the workplace.

Peter Straszynski is an employment, labour and human rights lawyer at Torkin Manes LLP in Toronto.

  • Cannabis vs. Alcohol, Cocaine etc

    Hi, I live in Alberta and have spoken to a lot of oil field workers. They tell me that they can drink and use cocaine all weekend or night, rampant use of speed/meth is also a problem and none of those substances affect their drug testing apparently and furthermore, even they are aware that they are mentally and physically impaired to work, if not technically. Working tired and hungover or on speed/meth is more likely to cause accidents than working with traceable levels of THC in the blood. A large man with a bit of extra weight who uses cannabis on the weekend or to sleep at night, will still test positive for cannabis but not be impaired whatsoever. Cannabis is the one drug whose use outside of work will not affect work performance or attention, but also in all likelihood reduce or limit use of the other substances that do. Alcohol and cannabis used together in most cases causes extreme dizziness and fatigue, often resulting in the need for immediate sleep. This would actually make for a safer work environment than one which discriminated against cannabis use but apparently lawyers and employers are more beholden to companies that test for drug use (and presumably their shareholders) than either employees or common sense.
  • Founder, The Arc

    David-George Oldham
    No one has employment rights in Canada with regards to the use of medical cannabis. If your employer doesn't like the fact you legally use cannabis they can legally fire you. The case law is TD v Oldham 20140551 with the federal human rights commission. Sorry to be the bearer of bad news, but you didn't want to help when the chance existed and now all Canadians will continue to suffer.

    Good luck with your updating. The case is semi-dead in the water just before federal court. If you wanted to try to champion it we could talk, but you're probably just too afraid to rise to a challenge like every other lawyer who saw the case. It's all good. Just don't lie to people and make them think they have proper precedent to protect them.