CAN YOUR EMPLOYEES SMOKE A JOINT AT WORK?
DECEMBER 2015 | AUTHOR: NAv BHANDAL
As marijuana use becomes more readily acceptable in society, employers may increasingly be confronted with the question of whether employees can smoke marijuana at the workplace. The short answer is: it depends.
There are essentially two issues at play: (i) human rights, and (ii) health and safety.
Under the Human Rights Code, employers have a duty to accommodate an employee’s disability needs to the point of undue hardship. Therefore, if an employee needs to use marijuana for medicinal purposes, employers must investigate ways to accommodate marijuana use unless to do so would cause undue hardship. The analysis is no different to employees having to use strong narcotics (e.g. pain killers).
At the same time however, under the Occupational Health and Safety Act, employers have a broad obligation to keep their workplaces safe. This means that one particular employee’s need to use medicinal marijuana must be considered against the backdrop of how that use would impact on the health and safety of not only that particular employee, but also the rest of the workforce. Examples of health and safety considerations are:
• Second-hand smoke may be hazardous to other employees.
• The employee needing to use marijuana works in a safety-sensitive position, such as operating heavy machinery, and using marijuana during working hours may impair his/her ability to safely operate that machinery.
Takeaways for Employers
In light of the human rights and occupational health and safety issues at play, employers should consider the following:
1. Update Workplace Policies. If they do not already, employers should have a written policy addressing the use of medication (and specifically referencing medicinal marijuana) which has the potential to impair an employee’s ability to carry out his/her duties. The policy should create a positive obligation on employees to disclose the use of medication impacting their duties. The policy should also make it clear that medication which impairs an employee’s judgment or performance may trigger the duty to accommodate policy. Banning recreational marijuana use, in the absence of medical documentation, is acceptable, but having a strict ‘no marijuana use’ policy will be deemed discriminatory.
2. Modified Schedule or Leave of Absence. For employees who do not need to use marijuana frequently or who only need to use it for a brief window as part of their treatment, employers can consider providing a modified work schedule with longer breaks between marijuana use and returning to his/her duties, or granting a temporary leave of absence.
3. Designated Smoking Areas. For employees who need to use marijuana regularly during working hours and that use will not materially impact on their judgment/performance, they should only be authorized to use marijuana in designated areas, akin to smoking areas.
4. Safety-Sensitive Roles. For employees who work in safety-sensitive roles, employers can consider transfers to alternate positions where health and safety is not a concern.
5. Discipline/Termination. The power to use medical marijuana creates an obligation to be responsible. Having a policy in place that requires employees to disclose their need for medicinal marijuana and to be an active participant in the accommodation process means that employees who breach their obligations can be disciplined, up to and including termination. In order to avoid allegations that discipline/termination was discriminatory, employers need to properly document all incidents and ensure that employees are only being punished for breaching established policies, not simply because they have a disability requiring the use of medicinal marijuana.
Conclusion
While employees may need to use marijuana for legitimate medical purposes, this does not mean they are free to use it without any restrictions. Employers who are confronted with this issue must ensure that they go through the detailed process of understanding specific employee needs and investigating ways to accommodate those needs while balancing the obligation to maintain a safe and healthy workplace for all.
If you have any questions relating to any of
the above, please do not hesitate to contact Nav Bhandal at nbhandal@kmblaw.com or 905.276.0408.
There are essentially two issues at play: (i) human rights, and (ii) health and safety.
Under the Human Rights Code, employers have a duty to accommodate an employee’s disability needs to the point of undue hardship. Therefore, if an employee needs to use marijuana for medicinal purposes, employers must investigate ways to accommodate marijuana use unless to do so would cause undue hardship. The analysis is no different to employees having to use strong narcotics (e.g. pain killers).
At the same time however, under the Occupational Health and Safety Act, employers have a broad obligation to keep their workplaces safe. This means that one particular employee’s need to use medicinal marijuana must be considered against the backdrop of how that use would impact on the health and safety of not only that particular employee, but also the rest of the workforce. Examples of health and safety considerations are:
• Second-hand smoke may be hazardous to other employees.
• The employee needing to use marijuana works in a safety-sensitive position, such as operating heavy machinery, and using marijuana during working hours may impair his/her ability to safely operate that machinery.
Takeaways for Employers
In light of the human rights and occupational health and safety issues at play, employers should consider the following:
1. Update Workplace Policies. If they do not already, employers should have a written policy addressing the use of medication (and specifically referencing medicinal marijuana) which has the potential to impair an employee’s ability to carry out his/her duties. The policy should create a positive obligation on employees to disclose the use of medication impacting their duties. The policy should also make it clear that medication which impairs an employee’s judgment or performance may trigger the duty to accommodate policy. Banning recreational marijuana use, in the absence of medical documentation, is acceptable, but having a strict ‘no marijuana use’ policy will be deemed discriminatory.
2. Modified Schedule or Leave of Absence. For employees who do not need to use marijuana frequently or who only need to use it for a brief window as part of their treatment, employers can consider providing a modified work schedule with longer breaks between marijuana use and returning to his/her duties, or granting a temporary leave of absence.
3. Designated Smoking Areas. For employees who need to use marijuana regularly during working hours and that use will not materially impact on their judgment/performance, they should only be authorized to use marijuana in designated areas, akin to smoking areas.
4. Safety-Sensitive Roles. For employees who work in safety-sensitive roles, employers can consider transfers to alternate positions where health and safety is not a concern.
5. Discipline/Termination. The power to use medical marijuana creates an obligation to be responsible. Having a policy in place that requires employees to disclose their need for medicinal marijuana and to be an active participant in the accommodation process means that employees who breach their obligations can be disciplined, up to and including termination. In order to avoid allegations that discipline/termination was discriminatory, employers need to properly document all incidents and ensure that employees are only being punished for breaching established policies, not simply because they have a disability requiring the use of medicinal marijuana.
Conclusion
While employees may need to use marijuana for legitimate medical purposes, this does not mean they are free to use it without any restrictions. Employers who are confronted with this issue must ensure that they go through the detailed process of understanding specific employee needs and investigating ways to accommodate those needs while balancing the obligation to maintain a safe and healthy workplace for all.
If you have any questions relating to any of
the above, please do not hesitate to contact Nav Bhandal at nbhandal@kmblaw.com or 905.276.0408.
This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.
