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Traditionally, Canadian courts and arbitrators have upheld discipline against employees who have disobeyed company policies by using or possessing marijuana[1] on company premises. There has generally been no need for the employee to have engaged in dangerous conduct, so long as the employee’s use of marijuana occurred on company property. However, the potential legalization of marijuana has received significant media attention in recent months, and many employers have expressed concerns about the effect this legislative change may have on the workplace, particularly if it increases the use of marijuana to treat medical conditions.

Management of Medical Marijuana Use at Work

In Canada, individuals holding valid authorization to possess dried marijuana for medical purposes are wholly exempt from criminal liability under the Controlled Drugs and Substances Act (“CDSA”). As a result, those employees are treated like other employees using prescription narcotics that may have negative side-effects and are governed by “fit for work” policies prohibiting employees from attending work under the effects of drugs (prescription or otherwise) or alcohol.

Employers should note that human rights tribunals, courts and arbitrators are likely to view employees using medical marijuana just as they would any other individual using a prescription drug to treat an underlying illness that may constitute a “disability”. As a result, employers will be under an obligation to accommodate such employees to the point of undue hardship.

However, arbitrators and courts have generally upheld policies that require employees to be “fit for work” and free from the effects of drugs, alcohol, or prescription medication sufficient to impair their capacity to perform their duties. Valid policies respecting the use of prescription medication often contain a “self-reporting” mechanism, whereby employees consult with their attending health care professional as to whether their prescribed medication may result in any side effect and, if so, whether those side effects may impair work performance. Importantly, the medical use of dried marijuana does not require a medical prescription, per se; this is a fact that may be relevant given the wording of some “fit for work” policies. Employees who fail to report possible side effects of medication may be subject to discipline, including termination.[2]

Determining How to Properly Accommodate Employees Using Medical Marijuana

Even though an employee may be “fit for work”, that individual’s use of medical marijuana may nonetheless pose problems that would not occur with traditional medications. For example, where an employee must use marijuana during working hours, there is a potential that the individual will smell of cannabis afterwards. As a result, the company may have an interest in protecting its public image that could be negatively affected by the appearance of an employee using marijuana during working hours, even though the employee may not be impaired and may be using the drug legally. There is some precedent to suggest that limiting an employee’s interaction with the public in such circumstances would not be unreasonable[3].

In the event that an employee cannot safely perform his duties due to his use of medication, or that the employee cannot work with the public while using marijuana, the employer must attempt to accommodate the employee’s underlying disability to the point of undue hardship. The employee’s accommodation should be addressed through the company’s established protocol for addressing disability and accommodation issues, and any accommodation efforts should address both the employee’s use of marijuana, and the underlying disability that the employee is treating.

[1] Also known as weed, pot, ganja, dope, Maryjane (or MJ), herb, the bubonic chronic, fatty boom blatty, etc.

[2] See, for example, Royal Columbian Hospital v. British Columbia Nurses’ Union (Anderson Dismissal), [2003] B.C.C.A.A.A. No. 361 (Gordon).

[3] See, for example, Re Bosal Inc. and C.A.W.-Canada, Local 1837 (2005), 136 L.A.C. (4th) 437).

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