DIY Management: How to prevent your workforce from going to pot
The impending legalization of marijuana in Canada means businesses should look at their workplace impairment policy. Employment lawyers J. Geoffrey Howard, a partner at Roper Greyell LLP in Vancouver, and Cindy Zheng, associate at McQuarrie Hunter LLP in Surrey, discuss who can do what at work
Illustrations by Victoria Park1. Go broad
Consider a policy covering anything that might cause impairment and safety issues, advises Zheng, who notes that “prohibiting non-medicinal marijuana is acceptable, and that falls under the general obligation that you have to show up to work able to do the job safely.” Howard adds that an employer has a right to expect staff to be sober when they’re working. “It’s the same as someone who recreationally drinks alcohol,” he says. “There’s no legal issue about prohibiting recreational marijuana use by your employees, and certainly prior to working or during work. You’ve got an unlimited ability, if you wish, to simply say no.”
2. Be aware of the B.C. Human Rights Code
Addiction is considered a disability under the code, so an employer must accommodate an employee who is addicted to marijuana, Zheng warns. It’s the same responsibility you would have to an alcohol addict, explains Howard: you don’t have to let them come to work stoned or high, but you will have to have to explore what “reasonable accommodation” you can provide. There are no detailed guidelines regarding duty to accommodate under the Human Rights Code or in case law, so he recommends consulting experienced labour and employment lawyers.
3. Know how to manage medical marijuana use
If an employee has a disability for which they’re using marijuana as a medication, under the Human Rights Code the employer must also accommodate them up to the point of “undue hardship,” Zheng says. The employer is entitled to verification from a medical doctor that this is a legitimate treatment for a real condition that meets the test of disability, points out Howard, and, as with addiction, needn’t accept whatever the employee wants to do. “If someone’s taking a strong opioid-based painkiller, you have the same issues and the same concerns,” he says.
4. Explain the policy
Make sure employees understand what the policy is, what it means, what the Human Rights Code says about medical and non-medical marijuana, and their duty to disclose that they’re using it. “The duty to accommodate is a two-way street, and where your safety or your judgment or your reactions could be impaired, there is an obligation on the employee to disclose,” Howard says. Zheng’s suggestion: “Create a supportive environment so that people disclose willingly by themselves before an accident happens.”
5. Follow through
Send the message that if you see somebody breaching the policy, you will enforce the consequences, says Zheng, adding that random and mandatory testing isn’t available to employers without a reasonable basis for demanding it. “So depending on what your industry is, what does impairment look like, and when is it beyond a trivial threshold?” In the case of marijuana, Howard observes, there’s no accepted effective test for impairment. “But if facts come to your attention that someone may be impaired by marijuana in your workplace, then you’ve got to take steps,” he says, because employers have a significant legal obligation to keep the workplace safe for everybody.