How employers can reset policy for the new legal framework
The recreational use of marijuana has been legal in Canada for several weeks now, but there is still confusion about what it really means for employers. The complexity of potential issues needs to be considered, and it is likely that current policies contain outdated language that negates the intended effect. However, while this is a new situation for Canadian employers, existing laws surrounding the use of alcohol and illegal drugs, and previous experience, could inform new policies and disciplinary procedures.
The complexities of legalized recreational marijuana
The legalization of recreational marijuana has created a number of complications for employers. For example, and as we’ll discuss in a moment, while an employer can put in place a zero tolerance policy, the employer must also pay due regard to disabilities, medical use of marijuana and addictions. This means that:
- Disciplinary action cannot be taken against an employee because the employer believes he or she has an addiction, as doing so would violate human rights laws
- Similarly, the employer must accommodate employees who have been prescribed medicinal marijuana
- While the employer can request documentation that stipulates restrictions and accommodations recommended, it cannot request the diagnosis or explanation of the medical condition being treated.
Further complicating such situations is the employer’s right to request that the employee not work when his or her performance is impaired, if working would threaten the employer’s duty of care and responsibility to co-workers and others under health and safety legislation.
The difficulty of proving performance impairment
It can be difficult to prove that an employee’s performance is impaired because of the use of recreational marijuana, although supervisors may notice signs such as delayed reactions, poor coordination, and changing behaviours.
A more reliable strategy is to refer to a breach of the employer’s drug and alcohol policy. This was tested in Stewart v. Elk Valley Coal Corp. The employer successfully justified disciplinary action based upon breach of its drug and alcohol policy, when the employee tested positive after an incident at work.
Why existing drug and alcohol policies must be updated
While cases such as Stewart v Elk Valley Coal Corp. provide a precedent for disciplinary action to be taken, it is likely that existing policies will not cover recreational marijuana. This is because language used within the policy is now outdated, because of the legalization of recreational marijuana. For example, should an employer’s policy be worded to prohibit ‘illegal drugs and alcohol’, recreational marijuana use is no longer encapsulated by the policy.
Considerations when updating drug and alcohol policies
An employer’s drug and alcohol policy should be designed to ensure that the health and safety of employees (and others) are maintained as per obligations under occupational health and safety laws and regulations. As we’ve noted above, existing polices will need to be updated so that they apply in the new legal framework. The updated policy:
- May provide for zero tolerance, including use of marijuana at work and stopping employees attending work if impaired; but
- Must allow for the accommodation of employees with addictions; and
- Can require employees to disclose dependencies and addictions; providing
- Disclosure is required on the grounds of health and safety.
In addition, the drug and alcohol policy may include a detailed disciplinary process to be followed should the policy be breached, and the grounds upon which termination of employment would apply (not neglecting the need for clear warning before dismissal).
Enforcing disciplinary action
Should an employer conclude that a breach of policy has been committed by an employee, the disciplinary procedure should be carried out as detailed in the drug and alcohol policy. It will be important to maintain records of behaviours leading up to the breach. These may be required should the employee request arbitration or take the case to court.
A progressive disciplinary procedure may lead to termination of employment, and comprehensive investigation and records may support just cause, and thereby negate the need to provide notice or payment in lieu.
Employers with an existing drug and alcohol policy are advised to update it so that it remains valid and comprehensive for all drugs and alcohol. This will set the standards to which employees should adhere, with regards to use and possession in the workplace and impairment that may be caused by use.
In addition, it is good practice for employers to provide training and guidance on their new policies:
- Managers and supervisors should be trained in policy, and to identify the signs of use of recreational marijuana
- New and existing employees should be provided with drug and alcohol policy training
- All employees should sign to confirm that they have been issued with the new policy wording and understand it
Finally, disciplining employees because of their (suspected or actual) use of recreational marijuana is likely to be more complex in the new legal environment. Therefore, it is advisable that employers take legal guidance when developing a new drug and alcohol policy, or updating an existing policy, and when considering disciplinary action or termination because of a breach of policy.
At Rudner Law, we help employers assess their current policies and practices, and draft new workplace policies that align with evolving legislation. In addition we represent employers to ensure that new policies are implemented should difficulties arise. We can help you comply with the new situation, understand your responsibilities, and implement new policy. To find out more, contact Rudner Law.