We are often asked to comment on what effect the proposed legalization of marijuana is likely to have on workplaces. As I noted last year, many employers already have experience with marijuana-related workplace issues, given that the drug has been used for medical purposes for some time. However, the legalization and resulting-wide spread availability of marijuana will almost certainly create more opportunities for it to enter into the workplace.
Is It Legal Yet?
On April 13, 2017, the federal government introduced legislation, the “Cannabis Act” (a.k.a. Bill C-45), to legalize the use and sale of marijuana. As of the writing of this article, however, the Cannabis Act has only passed second reading and is not yet enacted into law.
It is important to note, therefore, that the possession of marijuana remains illegal, and is contrary to sections 4 and 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (other than for authorized medical use).
The Federal Government’s Guidance to Employers
In November 2016, the federal government’s Task Force on Cannabis Legalization and Regulation released its final report (the “Report”). In that Report, the Task Force acknowledged employer concerns regarding the potential workplace health and safety issues that may result if marijuana was to become more easily accessible.
In response to those concerns, the Task Force made three recommendations for the federal government to act upon:
- Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies;
- Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment; and,
- Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.
Needless to say, the practical utility of these recommendations for providing useful advice to employers on how to address the legalization of marijuana is… limited.
So, How Should Employers Approach the Legalization of Marijuana?
In the Workplace
The legalization of marijuana does not pose a significant challenge to employers from a policy perspective. This is because many employers already have policies prohibiting the use of a legal, but restricted, substance in the workplace: namely, alcohol.
In the likely event that the use of marijuana is legalized, this will not create a right for employees to possess it at work (except, of course, where the drug is medically necessary). Rather, employers will still be free to prohibit the possession and use of marijuana at work, just as they currently prohibit the use or possession of alcohol. This is particularly true in “safety sensitive” environments such as health care, manufacturing, transportation, construction, etc., where the courts and arbitrators have acknowledged that even random testing to monitor drug and alcohol use may be appropriate.
Furthermore, the Smoke Free Ontario Act requires that employers prohibit smoking tobacco in all enclosed areas of a workplace. Recent amendments to the legislation, once enacted into law, would extend the smoking prohibition to any product or substance defined by the Ontario government (including almost certainly marijuana). As a result, it is highly likely that, in the event that marijuana use is legalized, employers will be required by Ontario law to prevent employees from smoking it in the workplace (including any outdoor enclosed areas on the employer’s premises).
Off Duty Conduct
The fact that marijuana may become more widely available could result in many more individuals using it than currently do. This, in turn, could lead to increased employer concerns over their employees’ off-duty use of the drug, particularly where the employees could return to the workplace while intoxicated.
Once again, this situation is not dissimilar from the problems presented by alcohol. Save for very specific circumstances (such as a last chance agreement), employers are not free to prohibit the use of alcohol while employees are off-duty. However, employers are free to require that employees be fit for duty when they attend at work, and free from the effects of drugs and alcohol.
As such, employers may impose discipline on employees who use marijuana at home so long as there is evidence of workplace impairment. This is precisely the same approach that is used when employees attend at work under the influence of alcohol. Fifteen years ago, labour arbitrator Wes Rayner noted in Hamilton Street Railway and A.T.U., Loc. 127 (Haines) (Re),  O.L.A.A. No. 1040 endorsed this exact approach, despite the fact that marijuana was also illegal when he rendered his decision:
[…] I believe that many of the cases that deal with marijuana use are coloured by perception. In the first place its use is still illegal except in very limited circumstances. Whether one is of the view that simple use should be legalized or whether one is opposed to changes in the law the fact remains that one is still talking of an illegal activity. This element of illegality may colour the analysis of issues raised in many of the cases. While I am cognizant of the differences between drug and alcohol testing and the limitations of the former, in the end the real concern of the employer or the public is impairment, not simple use (questions of legality or morality apart). If impairment is the real issue should not the rules governing employees’ behavior be consistent for both substances? If one would not uphold a discharge for simple off-duty consumption of alcohol, why should one react differently for off-duty consumption of marijuana? If that off-duty consumption affects job performance or attendance, the legal analysis should be the same for either substance.
Arbitrator Rayner’s comments are even more applicable today, and provide useful guidance to employers seeking to regulate off duty use of marijuana by employees: have a policy requiring that employee’s be fit for duty and free from the intoxicating effects of drugs and/or alcohol.
 At para. 44, emphasis added.