Employers should prepare for the new challenges associated with legalized marijuana and its impact on the workforce, says Toronto employment lawyer Marie-Hélène Mayer.
With legalization expected to take place in Canada in 2017 and a handful of dispensaries already opening to long lineups in Montreal, Mayer, partner with Ingenuity LLP, says companies should prepare for how to deal with employees who show up to work under the influence of drugs.
That means updating company policies to specifically address marijuana and determine what extent of marijuana use would be grounds for dismissal.
“The legal landscape is changing and employers are going to have to prepare and adopt a balanced approach. One of the main questions employers will face is whether it is reasonable to adopt a zero-tolerance policy in the workplace when it comes to marijuana use. Employers certainly need to turn their attention to revising workplace policies,” Mayer tells AdvocateDaily.com.
Organizations must also consider possible impacts of legalized pot on employee safety and productivity, she says.
Under section 25 of Ontario’s Occupational Health and Safety Act (OHSA), employers have a duty to “take every precaution reasonable in the circumstances for the protection of a worker.” Employees, therefore, do not have a “right” to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers, Mayer says.
“An employer has a right to ensure their employees are able to carry out duties and responsibilities — whether the worker is drinking alcohol, taking prescription drugs or using marijuana — and this issue is not a novel one,” she says.
As well, Mayer notes, marijuana use doesn’t typically translate to high levels of productivity, so managers will need to be alert to the signs of intoxication. “But this is not always the case for all individuals. It can tricky,” she says, adding the focus has to be on safety and job performance.
“I think it will be an invisible problem and a bit of a black hole for employers who aren’t familiar with the drug,” she says. “There will be a steep learning curve in terms of how to manage this.”
The nature of the employee’s duties — and possible safety risks associated with those tasks — will have to be considered when determining whether marijuana use is grounds for dismissal, she says.
“If someone is a forklift operator and using marijuana, safety may be at risk. If they are sending questionable emails while under the influence, that could also be a problem.”
Drug testing is permitted in safety-sensitive environments as well as workplaces dealing with children, such as daycares, she says.
The problem is, Mayer adds, drug testing to determine marijuana impairment is not standardized, while a clear blood-alcohol reading can be used to determine if someone has had one too many drinks.
“The legalization of marijuana in 2017 will have a significant impact on workplaces, and employees should start preparing for a new reality as pot becomes more readily available,” she says.