On April 13, 2017, the federal government is expected to introduce legislation to legalize marijuana for recreational use. While full details have not yet been announced, the legislation is expected to take effect shortly before July 1, 2018.
While it is unlikely that legalization will significantly change the issues facing employers in dealing with marijuana use by employees, it may exacerbate the frequency with which marijuana-related issues arise and bring new and unexpected challenges to employers dealing with marijuana use by employees.
Currently, while an employer is generally permitted to prohibit marijuana use in the workplace, section 13 of the British Columbia Human Rights Code prohibits an employer from discriminating against an employee on the basis of a disability. As marijuana can be prescribed by a medical practitioner to treat various disabilities, if an employee uses marijuana to treat a disability their employer has a duty to reasonably accommodate that employee’s use (however, courts have been clear that the marijuana must be prescribed – see French v Selkin Logging, 2015 BCHRT 101). Similarly, if an employee is addicted to marijuana, an employer will have a duty to reasonably accommodate that employee’s use on the basis that their addiction constitutes a disability (see our earlier article on smoking as a disability).
An employer’s duty to reasonably accommodate employees whose use of marijuana is the result of or treatment for a disability can conflict with an employer’s obligation to ensure that their employees are not impaired and endangering themselves or others.
What constitutes reasonable accommodation is determined on a case-by-case basis and depends on several factors, including the nature of the marijuana use, the work being performed, and the type of employer. In the case of employers who work in safety-sensitive industries, an employer will naturally have a greater justification for circumscribing medical marijuana. However, random drug testing or a zero-tolerance policy relating to medical marijuana is unlawful.
One of the challenges in determining how far an employer must go to accommodate an employee’s marijuana use is accurately determining how impaired they become as a result of their marijuana use. A Framework for the Legalization and Regulation of Cannabis in Canada, a November 2016 report which is expected to inform the upcoming legalization legislation, stressed the “…urgent need for research to reliably determine when individuals are impaired”. In other words, there is no effective equivalent to a breathalyzer for marijuana, a fact which makes it difficult to determine the extent of an employee’s impairment as a result of marijuana use and, as a consequence, the extent of an employer’s duty to reasonably accommodate that employee’s marijuana use.
After marijuana is legalized, the above issues relating to marijuana use in the workplace will remain largely unchanged. However, as marijuana itself will no longer be an illegal drug, employers should reconsider the wording of policies concerning marijuana use in the workplace to bring them in line with those concerning alcohol consumption that prohibit impairment while working or during work hours.
As marijuana use becomes less stigmatized and more integrated with the social mainstream, employers and employees alike will no doubt encounter novel situations involving marijuana use and possession. It remains to be seen how courts and legislators will respond to these situations.