Marijuana in the Workplace – The Changing Landscape Part 2

With legalization on the horizon, Canadian employers and employees have questions about how prescription and recreational marijuana use are treated under employment laws.

This is the second of a series of blog posts looking at marijuana use in the workplace. Our last post reviewed the rules governing prescription marijuana use by employees. In this week’s post, we will look at recreational marijuana, and how employment laws might evolve in response to legalization.

What Stays the Same

With such a large change coming, we need to consider what stays the same. Most organizations already have a set of policies that govern drug and alcohol use by employees, and much of the standards will remain the same. The current policies surrounding alcohol in the workplace can be adapted to include recreational marijuana.

As with alcohol, employers can restrict marijuana use during working hours, and prohibit working under the influence. Progressive and other disciplinary measures can remain in place. The standard remains high for employees in safety sensitive positions.

Some Workplace Policies Need to Adapt

Employers need to think about their workplace drug and alcohol, and human rights policies before legalization occurs. Any testing protocols will need to be reviewed, and references to marijuana and its active ingredients amended to reflect its change in status.

Employers should also reconsider and update workplace smoking policies to include recreational marijuana smoking – it may also be a good time to think about how vaporizing should be treated!

Our experienced employment lawyers can advise organizations as they go through this process, to ensure that all appropriate changes are made, and flag potential problems before they arise.

Recreational Marijuana and Workplace Drug Testing

Workplace drug testing is largely limited by Canadian law: pre-employment and random drug tests are generally impermissible for the purposes of making hiring decisions and mandatory testing is problematic and generally limited to legitimate, work-related concerns. The legalization of recreational marijuana may further limit the capacity of employers to implement restrictive workplace drug policies.

Employers should be cognizant of the difficulties inherent in testing for marijuana. Due to the nature of its chemical components, marijuana remains detectable days or even weeks after use. The capacity of a drug test to detect impairment is next to zero, and employers should consult with their lawyer before undertaking any test to identify marijuana use.

Employees should educate themselves about the changes in the law. If you have been tested, disciplined, or terminated for marijuana use, our Employment Group can guide you through the options.

With recreational marijuana legalization potentially on the horizon Federal Government, every decision on the issues provides further guidance about how the Canadian workplace is adapting to recreational pot.  Our lawyers at Duncan, Linton LLP stay on top of the latest developments, and can provide advice about how these changes could impact you or your organization. If you are an employer or an employee with questions about marijuana use and the workplace, please feel free to call us at (519) 886-3340 or contact us online.