Marijuana legalization – How Employers Should Navigate the Hazy Legal Landscape

The legalization of marijuana is expected to change Ontario’s employment law landscape in 2018. Legislation is expected to be implemented by July 2018.

It is not too early for employers to take proactive steps to address these changes.

Expected changes

Bill C-45, An Act respecting Cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Bill”) passed its second reading on November 27, 2017. Although the bill will legalize cannabis across Canada, the provinces and territories will generally determine how marijuana can be sold and used. The Bill allows the Minister of Labour to make regulations relating to smoking in the workplace.

What employers should do

Employers should review their current workplace policies and if a drug and alcohol policy does not exist, then the employer should consider  adding one before the new cannabis laws take effect. Among other things, the policy should recognise that recreational use of marijuana will be legalized under the Bill requires a different approach than medical use of marijuana which has been legal since 1999.

Although the legalization of marijuana is a big change, employers often forget that just because something is legal, does not mean it is permissible at the workplace. For example, alcohol is legal, however, employers are entitled to expect that their employees report to work sober and refrain from drinking alcohol at the workplace. Similarly, simply because recreational marijuana is being legalized does not mean that it is permissible to smoke marijuana at the workplace, or attend the workplace impaired. Employers can set out their expectations regarding impairment and safety at the workplace in workplace policies and procedures.

With respect to medical use of marijuana, employers need to be mindful of their obligations under Ontario’s Human Rights Code, namely, the duty to accommodate employees to the point of  undue hardship, which may include permitting an employee to work while under the influence of marijuana. The duty to accommodate does not eliminate an employer’s right to seek medical proof of prescription and medical documentation supporting the fact that the employee is required to ingest marijuana during working hours, nor does it eliminate an employer’s duty to ensure that the workplace is safe for all employees. Thus, employers must remain prepared to deal with marijuana-related accommodation requests on a case by case basis, taking into consideration the employee’s medical needs and their obligations under health and safety laws.

Lessons to Be Learned

The legalization of marijuana is changing the legal landscape. Due to these changes, we recommend that new policies be drafted to address the anticipated increase in  marijuana use, or that existing policies be amended to ensure they are consistent with the upcoming changes. The MacLeod Law Firm offers a fixed fee service to prepare new drug & alcohol policies, or to revise existing policies.

If you have any questions regarding the effect of the Bill on your workplace, or would like to learn more about the fixed fee service mentioned above, feel free to contact 647-985-9894.