DON’T BOGART THAT JOINT MY FRIEND, PASS IT OVER TO ME  (WITH APOLOGIES TO COUNTRY JOE AND THE FISH)

On October 17th 2018, the federal government will legalize some, but not all, possession and use of recreational marijuana.  This fundamental change to marijuana laws will have potentially significant consequences for employers and their employees.  The uncertainty created by this change will make it difficult for employers to cope with the potential negative impacts of the increased use of marijuana by employees both at work and outside of work.

I note that numerous articles, blogs and newsletters by law firms, accounting firms and consultants devoted to the legalization of marijuana have recently been published.  Many law firms are putting on seminars to probe the dos and don’ts for employers.  The flurry of activity by lawyers and consultants in this area should be cause for concern for employers.  As I often note “anytime your lawyer says, ‘now that is an interesting question’, you better get ready to take out your cheque book”!  The legalization of marijuana will raise many “interesting questions” for employers as they try to navigate the new world of Cheech and Chong.

It is not possible to review, in this blog, all the issues related to the partial legalization of marijuana and how that might affect your workplace, nor is it possible to provide legal advice in this blog to employers on these very complex and potentially costly issues.  Each workplace must be considered on its own facts.  What I have attempted to do here is highlight some of the critical issues and facts to assist employers, especially in assessing their current policies and strategies.  I welcome any questions you might have on any specific topic herein.

Because this is a longer article than I usually write, primarily due the many issues and uncertainties arising from legalization of recreational marijuana, and while I hope those most affected will read all of it, I have also included a short “executive summary” for each topic. 

WHAT YOU NEED TO KNOW

  1. Why increased use of marijuana is in fact a “big deal”

Executive Summary

  • Marijuana is a mind- and mood-altering drug
  • Legalization will most likely lead to more users as such use becomes “normalized”
  • The Supreme Court of Canada has confirmed that it causes alteration of mental function.

Some commentators suggest that the legalization will not change how employers manage or control their operations.  While that may be correct in some instances, the reality is there will be significant changes in your workplace, largely because marijuana is not like alcohol or any other legal drug.  All at once, many people, including younger people, will be smoking or consuming marijuana as a normal aspect of their daily lives.

In a recent, insightful column in the September 29th 2018 edition of the Globe & Mail, Margaret Wente highlighted the problems that the country will face.  Under the headline “The downside of legalization: More potheads” she noted “It’s not fashionable to say so but pot is bad for you”.  She stated:

“Cannabis is like any other addictive substance.  Legalization normalizes it and normalization inevitably increases the user base.  The more people who try it the more will become dependent….

…anyone who says we can escape the downsides of legalization must be working for Big Pot—or government.  Justin Trudeau assures us that a controlled and regulated market will reduce access among youth.  But I think anybody who thinks marihuana use among teenagers will magically decline must be smoking something.”

Many will say it’s no big deal to make marijuana legal because it does not have negative effects.  That is simply nonsense.  Cannabis is a mood- and mind-altering substance.   The Supreme Court of Canada has acknowledged the significant impact of marijuana in R v Malmo-Levine:

“All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”.  That, indeed, is the purpose for which the appellants use it.  Certain groups in society share a particular vulnerability to its effects.  While members of these groups, whose identity cannot in general be distinguished from other users in advance, are relatively small as a percentage of all marihuana users, their numbers are significant in absolute terms.  The trial judge estimated “chronic users” to number about 50,000.  A recent Senate Special Committee report estimated users under 16 (which may overlap to some extent with the chronic user group) also at 50,000 individuals (Cannabis:  Our Position for a Canadian Public Policy (2002) (the “Senate Committee Report”), vol. I, at pp. 165-66).  Pregnant women and schizophrenics are also said to be at particular risk.  Advancing the protection of these vulnerable individuals, in our opinion, is a policy choice that falls within the broad legislative scope conferred on Parliament.”[para 3]

It is also possible that the higher usage of marijuana could lead to more use of illegal drugs such as cocaine.  All of which will have consequences for employers.

  1. Legislative framework

Executive Summary

  • Bills C-45 and C-46 will, as of October 17th 2018, regulate production, distribution and sale of recreational marijuana (the laws relating to trafficking and higher amounts remain unchanged)
  • The Provinces have set different rules regarding consumption and distribution. For example, the legal age in BC is 18 but, in Quebec, it is 21
  • Edibles are not yet legal (although it is expected they will be within a year)
  • Edibles create an additional issue in that the user may be unaware of the strength (and therefore level and duration of impairment) of the drug they’re consuming
  • Despite the tests of impairment contained in Bill C-46, Canadian police forces are not ready to use the blood testing program nor are they rushing to obtain the only approved testing device
  • Marijuana is different from alcohol in that both law enforcement and employers have no effective means of testing a user to ascertain that he or she is impaired
  • Detection by employers is also a significant problem, and will likely worsen with legalization of edibles
  • So far, we don’t know how insurers will manage accidents where it is proved that the driver consumed marijuana

Previously, medical use of marijuana has been legal based on the period and usage defined by the employee’s physician. Currently, recreational marijuana is a banned substance under the Controlled Drug and Substances Act.  This will change on October 17th 2018.  At that time, Bills C-45 and C-46 will provide legal access to marijuana and will control and regulate its production, distribution and sale.  As a result, adults will be allowed, in certain circumstances, to produce, possess and access regulated and quality-controlled marijuana for recreational purposes.

The legalization of marijuana is limited and is strictly controlled – methods of consumption and amounts of legal possession are limited by the legislation.  For example, commercial edibles are not legalized, although it is expected they will be legalized within a year.  The delay in legalizing edibles reflects the uncertainty in allowing the use of marijuana.  For example, impairment effects from edibles may be delayed for many hours, so a user might not realize how potent the amount of THC (the active ingredient in marijuana/cannabis), is, and be impaired at any time without realizing it.  Other issues related to edibles include ensuring consistency of the THC in the product.

Under the legislation, users:

  • will be allowed to purchase cannabis only from regulated distributors;
  • can only carry 30 grams of legal dried cannabis; and
  • in BC, can grow up to 4 cannabis plants at home and make cannabis food and drink at home. (But see restrictions in BC regulations below)

The provincial regulations are still being drafted and refined as the deadline date approaches.  The result will be a hodge podge of regulations across the country that must be consistent with the federal statutes.  For example, the legal age of access to marijuana will vary by province (BC is 19 years; Quebec is 21).  Regulations on the growing of marijuana at home vary.   Quebec will forbid growing pot at home while BC will allow adults to grow up to four plants per dwelling, but landlords can disallow cultivation and use by tenants.

Bill C 46 deals with the blood drug concentration levels within 2 hours of driving and various offences committed by exceeding such levels.  Despite the fact the federal government has provided a clear definition of what will constitute impaired driving, and a legislated shortcut (which will very likely be challenged under the Charter), Canadian police forces are not yet ready to use the government approved blood testing program, nor are they rushing to use the only approved testing device.  Accordingly, in many jurisdictions, police will rely on traditional tests such as urine tests, and other sobriety tests.  Once again, with the rush to legalization, the devil remains in the details, which only creates more uncertainty.

Unlike alcohol, the difficult problem employers and law enforcement officials face is that there are really no effective means of testing an employee to see if she or he is truly “impaired”.  Detection is also a significant problem and will be an even bigger problem once edibles are legalized.

It is not clear how insurers might deal with accidents where it is proven that marijuana had been consumed by the driver(s).

  1. The obligation to maintain a safe worksite

Executive Summary

  • All employers in BC have a legislated duty to provide a safe workplace
  • An employer is prohibited from allow a person to remain at the workplace when that person’s ability to work is affected by alcohol, a drug or any other substance so as to endanger that person or anyone else
  • An employee must report their impairment to the employer and cannot be assigned to any activity that may create undue risk
  • Without a strict policy, it is difficult to see how an employer will be able to abide by the legislated duty to provide a safe workplace
  • Allowing employees to use marijuana in the workplace creates potential liability for an employer for any hurt to the employee or others resulting from such use (see Jacobsen v Nike Canada below) where an employee was seriously injured driving home after consuming alcohol provided by the employer at the workplace – will those tests be applied for marijuana use? No answer yet.

Legalization is not just a concern about productivity that will be negatively impacted by the increased use of marijuana both during and before work.  It raises potentially serious safety issues for employers.

The obligation on employers in BC to provide a safe workplace is covered by the Occupational Health and Safety Regulations.  For example, section 2.2 of the OH & S Regulations provides:

2.2 General duty

Despite the absence of a specific requirement, all work must be carried out without undue risk of injury or occupational disease to any person.

Similarly, Regulation 4.20 provides:

4.20 Impairment by alcohol, drug or other substance

(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(3) A person must not remain at a workplace if the person’s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons.

Note: In the application of sections 4.19 and 4.20, workers and employers need to consider the effects of prescription and non-prescription drugs, and fatigue, as potential sources of impairment. There is a need for disclosure of potential impairment from any source, and for adequate supervision of work to ensure reported or observed impairment is effectively managed.

Further, employees have certain obligations under the regulations including Regulation 4.19 which provides:

4.19 Physical or mental impairment

(1) A worker with a physical or mental impairment which may affect the worker’s ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else.

(2) A worker must not be assigned to activities where a reported or observed impairment may create an undue risk to the worker or anyone else.

It is difficult to see how an employer can abide by these obligations absent a strict policy on marijuana.

There are also potential issues of liability of employers who allow employees to use marijuana at the workplace or while at work place functions.  If marijuana is introduced and accepted in the workplace then the employer is potentially liable if, for example, the employee hurts herself or someone else driving home from a work function impaired.  If the “beer after work” perk is replaced with the joint of marijuana, employers might become liable for accidents.

The leading case in British Columbia on employer liability in this area is Jacobsen v Nike Canada.  The employee, a 19-year-old warehouseman, worked 16 hours in his job as a warehouseman.   During working hours, he and his fellow employees drank substantial amounts of beer which were provided by Nike. After work, he and his friend visited two clubs and drank more beer.  He had a car accident while driving home which rendered him a quadriplegic. The court held Nike liable for breaching its duty of care to the employee.

The court stated, at paras 54 and 55:

Nike required the employees to bring their cars to work and knew they would be driving home.  In effect, Nike made drinking and driving part of the working conditions that day.  It effectively encouraged the crew to drink without limit by making freely available large amounts of beer in an atmosphere which induced thirst and drinking games.  The supervisors, Mr. Agostino and Mr. Prasad, drank along with the crew, and made no attempts to restrict or monitor the amount the plaintiff or any of the other crew members drank.  No one told the plaintiff that some of the beer was intended for customers later in the weekend.

Nike’s responsibility to the plaintiff went beyond watching for signs of impairment and taking steps to prevent him from driving if it observed any such signs.  Its responsibility for his safety required that it not introduce into the workplace conditions that it was reasonably foreseeable put him at risk.  It is hard to imagine a more obvious risk than introducing drinking and driving into the workplace.

 If an employer allows its employees to use marijuana in the workplace, whether on paid or unpaid time or at work related functions.  it raises another one of those “interesting questions” employers will face.  Will the employer be liable if the employee subsequently is involved in an accident?  Will employers have to reconsider their holiday party policies as they relate to the use of marijuana?  Again, the reality that has to be considered is that it is likely more and more of your employees will start using marijuana as part of their normal lives.

  1. Marijuana, Impairment, Detection and Workplace Policies

Executive Summary

  • The ability to detect or assess impairment arising from the use of marijuana is very different from the use of alcohol. Accordingly, employers will have to consider to consider whether their current policies will be sufficient
  • The RCMP have banned it for 28 days before gun-carrying officers can report to work, whereas Vancouver is only requiring police officers to be “fit for duty” when they show up for their shift – this is similar to alcohol policies that allow use outside working hours so long as the employee shows up sober for work
  • A recent grievance arbitration dealt with an employee’s use of prescribed marijuana for what was accepted to be a disability. Although the employee said he didn’t feel impaired, he failed the drug test and was denied employment.  The arbitrator held that the difficulty of measuring impairment made the employee an unacceptable safety risk and held that the employer had met its duty to accommodate obligation. See Section 5 below for a further discussion of the duty to accommodate and complaints under the Human Rights Code of BC

The key difference between marijuana/cannabis use and alcohol is the fact that detection of impairment in the latter is fairly certain whereas there are no real effective tests for impairment for those who use marijuana.  The inability to assess impairment for marijuana use has led to a wide variety of employer-imposed restrictions and prohibitions.

The best example of this is seen in the various police departments. According to an October 8th 2018 Globe & Mail report, the RCMP will make it almost impossible for gun-carrying officers to consume cannabis.  The workplace policy will call on Mounties to refrain from consuming cannabis for 28 straight days before a shift. The position will place the national police force among the most restrictive in Canada.

The RCMP’s position highlights major differences among federal organizations on the use of cannabis by their employees, as the Canadian Armed Forces have announced that most members will be allowed to consume eight hours before a shift.

There are also divergent policies among police organizations, with the Calgary Police Service adopting a complete “abstinence” policy in terms of cannabis use by its officers, whereas police services in places such as Ottawa and Vancouver will only require officers to be “fit for duty” when they show up to work. The policy in those organizations will be similar to the one regarding alcohol use, which is allowed outside of working hours as long as officers are sober when they arrive at work.

The problems with accurately assessing impairment for marijuana users was used in one recent case to uphold an employer’s ban on hiring anyone who tested positive for marijuana when applying for a job in a safety sensitive position.  The case provides a thorough analysis of the assessment of impairment for marijuana users.

In  Lower Churchill v IBEW Local 1620 )(Tizzard grievance), the arbitrator, appointed under the collective agreement, had to consider the grievance of a worker who applied for what were found to be a safety sensitive labourer’s jobs.  The worker was diagnosed with Crohn’s disease and osteoarthritis.  His physician issued him a Medical Authorization for up to 1.5 grams of cannabis with THC levels of up to 22% to be ingested by vaporization. He took the marijuana every evening and said he did not feel impaired the next day.  The grievor failed the pre-employment drug test and was denied both jobs.  The Union grieved, arguing the employer had failed to accommodate the employee’s disability.

One interesting point in this case is the fact that the arbitrator examined significant medical evidence, including the evidence of doctors and various publications, and found that residual cannabis impairment might last for more than 24 hours.  The arbitrator found that there was no available testing that allowed an employer to measure impairment from cannabis use on a daily or other regular basis.  The employer here had a duty to accommodate (“DTA”) but, since it could not accurately measure marijuana impairment, it could not adequately manage the safety risk arising from the use of marijuana. Accordingly, this inability to measure impairment created an unacceptable safety risk and thus the employer had met its DTA obligations and the grievance was dismissed.  The fact the worker said he felt ok was insufficient evidence.  The arbitrator concluded (at p. 65):

As a result of the foregoing, the Grievance is denied. The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the jobsite. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.[1]

  1. Do employers have a duty to accommodate all recreational marijuana users? 

Executive Summary

  • No
  • The duty to accommodate arises under the BC Human Rights Code where an employee has a disability (resulting in a Medical Authorization and an employer assessment to see if the duty to accommodate has been met). Currently, where an employee has a medical authorization, for the use of marijuana, an employer assessment will be required to ascertain whether the duty to accommodate can be met
  • Addiction to marijuana constitutes a disability
  • The test for duty to accommodate requires accommodation unless to do so would constitute “undue hardship” on the part of the employer – a difficult standard decided on the individual facts
  • While non-union employers have no duty to accommodate when no disability exists, unionized employers may have difficulty enforcing a total ban or a ban for a certain period of time prior to showing up for work
  • The fact of disability can be challenged if the facts warrant it
  • Even if the employer is unaware of a disability, it may have a duty to inquire in some circumstances
  • Key to protection is a well-drafted employee manual

The answer is no.  The DTA only arises under the BC Human Rights Code when the employee has a disability.  In cases where the employee has a disability that results in the issuance of a Medical Authorization, then the employer must conduct an individual assessment to see if the DTA has been met.  If an employee is addicted to marijuana, the DTA will arise as addictions are considered to be disabilities. Given the increased use and acceptance of marijuana and its mind- and mood-altering effects, it is likely more employees will become addicted.

The DTA requires the employer to show that it has accommodated to the point of “undue hardship”.  That is often a difficult onus to overcome.  As readers of this blog know, what constitutes “undue hardship” is decided on the facts of each case and is, once again, one of those annoying “interesting questions”.

The analysis of the employer’s DTA was required in the Tizzard grievance because the marijuana was being taken under doctor’s orders to help deal with Mr. Tizzard’s disabilities.  That case had some unique factors, including the conclusion by the arbitrator that the two labourers’ positions were “safety sensitive positions”.  This conclusion made it easier for the employer to satisfy its DTA given the inability to assess actual impairment resulting from use of marijuana.

Absent a disability (or a perceived disability), employers are not bound by the Human Rights Code and therefore are not subject to the DTA.  However, even in the absence of a disability, a unionized employer might have problems in enforcing a complete ban on marijuana including any ban for a certain period of time before showing up to work.

The conclusion that an employee has a disability should not just be accepted by an employer -depending on the facts, this might be challenged.   Further, the lack of awareness of a disability by an employer, might not relieve an employer of liability under the Human Rights Code.  For example, in certain circumstances, an employer might be under a duty to inquire as to whether an employee has a disability if it is alerted to a problem.

Most well-drafted policy manuals address the issue of disclosure on the part of the employee.  If the employee chooses not to disclose a disability and the use of marijuana, he or she might not be able to later argue that the employer should have made inquiries as to his or her medical condition.  An employee who does not make the employer aware of a disability runs a risk.

In a recent Human Rights case, Burton v Tugboat Annie’s Pub, the Tribunal noted, at para 65:

The [BC Human Rights] Tribunal has stated that an employer must be aware of an employee’s disability or ought reasonably to be aware, before a duty to accommodate will be triggered…

  1. What about employees who work at workplaces other than that of the employer?

Executive Summary

  • Where an employee works at a workplace owned by someone other than an employer, he or she may be bound by the marijuana rules of that workplace
  • The fact that an employee is at another owner’s workplace might not defeat a human rights claim brought by that employee against the owner and the employer (See: “SCC once again expands scope of human rights code to protect employees” Weiler blog January 2018 http://weilerlaw.ca/scc-once-again-expands-scope-of-human-rights-code-to-protect-employees/)

 Many employees are assigned to work at some workplace other than that of the employer.  This may involve driving to and from such workplaces.  If an employee is working at another workplace, he might be subject to the marijuana rules applicable to that worksite.   In light of the Supreme Court of Canada’s decision in BC Human Rights Tribunal v Schrenk , the fact that the owner of the workplace may be different than the employer, might not defeat a human rights complaint by such employee against the employer and the other owner [See “SCC once again expands scope of human rights code to protect employees” Weiler blog January 2018 http://weilerlaw.ca/scc-once-again-expands-scope-of-human-rights-code-to-protect-employees/

Obviously, an employer will want to ensure that the employee who drives during working hours, whether in his car or the employer’s car, is not in any way impaired.

 

  1. Will there be different issues for unionized employers?

Executive Summary

  • Yes
  • In implementing or enforcing new marijuana rules, the process and results are different for unionized and non-unionized employers
  • Unionized employers will have more difficulty in implementing rules and, upon enforcement of those rules, might be confronted with a grievance, a well-funded union and an arbitrator who can order the employee to be reinstated to his or her position
  • Non-unionized employers will have greater leeway in implementing rules and, upon enforcement of those rules, is less likely to be confronted by a lawyer arguing the employee’s case and, unless there is a complaint pursuant to the Human Rights Code, there is no jurisdiction to reinstate the employee to his or her position.

The answer is yes.  As the Tizzard grievance shows, the process of arbitration arose under the collective agreement – that process would not be required for a non-union employer, who would only be subject to a human rights complaint. The non-union employer will have far greater leeway in imposing zero tolerance rules (subject, of course, to Human Rights concerns).  However, a unionized employer will potentially face challenges by its union even in the absence of a human rights issue including many procedural hurdles.  For example, workplace rules can only be imposed when the employer satisfies the tests in Lumber & Sawmill Workers Local 2537 v KVP Co. Unionized employers face a heavy onus to justify any type of drug or alcohol testing: see CEP Local 30 v Irving Pulp & Paper.

Of course, the biggest problem facing unionized employers is that arbitrators have the authority to reinstate an employee or remove any discipline.  Unions are well financed and can take an employee’s case to arbitration and present it in a professional manner.  A non-union employer (other than those who are federally regulated under the Canada Labour Code) will not face the prospects of reinstatement as a remedy by the court in a wrongful dismissal (although, once again, if a complaint is found to be valid under the Human Rights Code, the Tribunal does have the ability to reinstate as a remedy).  Further non-union employees are less likely to hire a lawyer to argue their case.

  1. Employees entering the USA

Executive Summary

  • It is not looking good for employees entering the USA if they are marijuana users
  • The situation lacks clarity, possibly due to the rush to pass the new legislation

 USA border officers are apparently aggressively enforcing the federal laws that prohibit marijuana use and possession notwithstanding that many states, such as Washington, Colorado and now California, have legalized recreational marijuana.  Your employees heading to the USA might well be questioned on marijuana use and, depending on how they answer the questions, they might be turned away at the border and potentially be permanently banned from entering the USA.  It is reported that even owning shares in, or working for, a cannabis company might be sufficient grounds for USA authorities to ban entry.

 In an article in the Vancouver Sun October 1st 2018, it was noted that the BC government employees who work in liquor stores and sell recreational marijuana might be barred from entering the USA.  BC’s Solicitor General Mike Farnsworth was quoted as saying:

“We’ve been making it clear to the federal government that this is a serious issue [which he called an] unintended consequence [of Canadian legislation].

It’s a real issue and a real concern, and there’s going to need to be a lot of education done about this issue right across the country.

We as a province want to make sure that British Columbians understand what it means to cross the border, and to understand the risks, particularly with the Trump administration in power.”

There is no clear direction nor solution to this very real problem.  However, it appears that the US Border Services are softening their policies in this regard.  Unfortunately, the Trudeau government appears to be powerless in effectively addressing this situation to allow free passage to law abiding Canadians.

In an article in the Vancouver Sun on October 10th 2018 entitled “If you buy cannabis, will Uncle Sam find out?” it was noted that with the purchase of marijuana on line through the internet there will be a record of data showing such activity that might well be accessed by US border officials.  Again, there does not seem to be clarity on this issue.

WHAT YOU SHOULD DO

Many commentators are suggesting that most employers can simply rely on their current policies for the use of legal drugs.  In my view that should not be the route to go unless the employer feels their current policies adequately cover the use of marijuana.    As noted throughout this article, each workplace and policies must be assessed individually.  The argument in not doing anything is “why rock the boat—this is no different than taking a prescription pill that may have an impact on your ability to work productively or safely.”  I disagree.

Consider these potential issues:

  • What if an employee is at a lunch or social function with an important client and the client offers marijuana. Is the employee entitled to join in?
  • How does an employer regulate “on call” employees?
  • Undoubtedly there will be privacy issues raised in the enforcement of any policies. How does the employer balance privacy rights with the need to provide a safe and productive workplace?
  • Will the employer expect or require that other employees will tell on fellow employees using or having possession of marijuana or related paraphilia in violation of the policies?
  • Will overly restrictive policies negatively affect employee morale?

These are just some of the “interesting questions” (that means legal fees) that should be considered by all employers who want to be pro-active in addressing how the legalization of marijuana will affect their workplace.

I offer two suggestions for clients to consider in this new regime:

  1. Given the uncertain nature of the level of impairment at any given time and the inability of the employer to adequately detect or measure impairment, I suggest employers consider a blanket prohibition from not only the use and possession of marijuana in any form, from the time they arrive at work to the time they leave, but also a prohibition from reporting to work if they have used marijuana in the previous “X” hours before work.  If they have used marijuana in the restricted time period and show up for work, that will be considered a disciplinary offence and subject to discipline up to and including termination for cause.  Although proving that the employee has breached this policy will be difficult, the employees know that by showing up for work, they are warranting that they have not used marijuana in the previous “X” hours, and that breaching such policy might result in termination – together, that might be a sufficient deterrent.I recommend educating your employees on all aspects of marijuana use and abuse and of company policies in this regard.
  2. Education might well be the key to avoiding problems in the workplace with the use of recreational marijuana.  Hold paid training sessions – employees may well buy into any restrictions on marijuana, including a zero-tolerance policy, if that is what you choose to implement.  Ensure that everyone follows the rule -employees, managers and owners.   By engaging your employees in a meaningful dialogue, you will likely avoid a number of problems with the use of marijuana while respecting the employees’ rights to use recreational marijuana.

The best means to accomplish these goals is to rewrite employee manuals, employment agreements and collective agreements.  However, in the case of a unionized-employer, that will mean consulting with your union to embrace both the new policies and the education programs.

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The content in the Michael Weiler Employment + Labour newsletters and blog is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Michael Weiler to discuss your situation.

[1] For those readers wanting to explore the differences between marijuana and alcohol testing including the current medical evidence I commend the Tizard decision to you.