Legalizing marijuana has introduced some real concerns for businesses in British Columbia. Although the new Cannabis Act allows employers to set policies to prevent impairment and the use of non-medical marijuana at work, employers have to accommodate employees who are prescribed marijuana for medical reasons. This has employers worried about how they are going to maintain a safe work environment, uphold job expectations and effectively measure whether or not employees are too impaired to work.
What kind of policies should I have?
WorkSafeBC requires employers, not employees, to uphold a safe work environment. Recreational marijuana is already popular and more people are likely to use it after it becomes legal. However use of marijuana is proven to impact cognitive and motor functioning, so it can pose serious safety concerns.
Employers are entitled to put polices in place policies impairment in the workplace. Unfortunately, there are no standard tests that evaluate impairment from marijuana. Workplace policies should cover situations when work is affected by marijuana use, or when marijuana use can cause risks or danger to the user or anyone else.
Smoking laws will apply to marijuana smoke. Employers can still enforce smoking policies on work premises, even for employees with medical marijuana prescriptions.
Employers need to be mindful that any policy must be genuinely related to what their employees are doing on the job. This is known as a “bona fide occupational requirement”.
My employee has a medical marijuana prescription…
As marijuana has both medical and recreational uses, if any employee is using marijuana use relating to a disability, they will need to disclose the disability and the requirement to use marijuana to treat that disability.
The BC Human Rights Code requires employers to make adjustments (“accommodations”) to help employees with a medical marijuana prescription, or even a drug addiction, stay at work. Accommodations can include providing more frequent breaks, alternative scheduling, altering the employer’s duties, or moving employees out of safety-sensitive positions. Employees with a medical marijuana prescription should be accommodated the same way as any other medication.
An Employer cannot assume that if their employees are using medical marijuana that they cannot perform their duties at work. Employers can ask the employee what they are able to do and accommodate as necessary. It is not recommended to change an employees’ workload under the assumption that their drug usage impairs them more than it actually does.
If an employer has any questions regarding the medical treatment, they can request further information from the employee’s doctor. For example, employers can confirmation from the employee’s doctor that the prescribe usage does not impair the employee’s ability to safely perform their job duties. An employer may seek the assistance of an independent medical examiner to determine an employee’s ability to perform specific tasks and decide appropriate accommodations. Transparent accommodation allows employers to maintain a safe working environment and gives employees an opportunity to work to the best of their abilities while treating their medical condition.
The duty to accommodate means an employer must take “all reasonable and practical steps” to allow the employee to keep working in their job. The law may require the employer to accept inconveniences or give reasons why further accommodation was not reasonable or practical, but it does not ask employers to take on “undue” hardship.
Unfortunately, the duty to accommodate does mean that an employer can’t just enforce a zero drug policy. Employers are required to find suitable workplace accommodation for disabled employees who have a prescription for medical marijuana.
My employee is getting high on the job…
Employers dealing with actual or suspected impairment in the workplace should be aware that drug testing is a controversial area of law that is difficult to navigate without legal advice.
Employers should have clear written policies regarding drug usage in the workplace, follow graduated disciplinary steps, and be aware that drug addiction is considered a disability requiring accommodation.
Before firing an employee for being high on the job, an employer should get advice from a lawyer.
The good news for employers
The good news is that the Cannabis Act does not take marijuana usage in the workplace completely out of the employers’ hands. Employees cannot be impaired at work or compromise others’ safety. It also does not entitle those with marijuana prescriptions to smoke around others in the workplace, or be excused or late from work. Employees will still have to perform their duties and tasks and adhere to policies that support a safe work environment.
The Cannabis Act will hopefully also lead to more research and a better understanding of the effects of marijuana and how to measure impairment.
It’s also important to note that employers don’t have to manage this all on their own. Hamilton Duncan is here to guide you through the legal process and help you achieve your employment goals. Feel free to get in touch with our lawyer, Chelsea, anytime.
About the Author:
Chelsea is an associate litigator at Hamilton Duncan. She focuses on employment law and human rights law as well as estate litigation. Chelsea is a passionate lawyer who enjoys working with her clients to find a solution that best fits their needs.