Weed at Work - The Importance of Policies
Last month, recreational cannabis was decriminalized across Canada, replaced by a matrix of Federal, Provincial, and municipal regulations setting out limitations on possession, distribution, and use.
One of the areas where legal reforms have not generally been made is in the employment law arena. This is not surprising. In general, substance use and intoxication in and around the workplace has been regarded as a matter for employers themselves to address, in a manner that suits the context of their business and their obligations under occupational health and safety statutes, etc.
In general, there are social norms surrounding alcohol and tobacco use: Don't show up to work drunk; don't drink while at work; smoke in designated areas on your breaks; etc. That said, these norms aren't absolute, and they have their grey areas. In certain professions, it is acceptable or even common to have a decanter of whiskey in your office, or to have a beer or glass of wine with lunch. In other jobs, it is not uncommon for an individual to show up to work in the morning, still intoxicated from the night before.
As such, social norms do not, in and of themselves, amount to enforceable rules. An employer cannot rely on social norms, or common sense, to infer that an employee ought to have known that a beer at lunch would not be appropriate.
A policy, on the other hand, clarifies the employer's position: If a beer at lunch is inappropriate, a policy can make that clear. Particularly for personnel who perform safety sensitive functions, putting a zero tolerance policy into effect is critical, and potentially legally obligatory in light of the employer's obligations to maintain a safe working environment: If your forklift operator is ever wondering how many beers he can safely imbibe at lunch, the answer should be zero.
There should be several failsafes in place against a forklift driver having a few at lunch, then returning to work buzzed or drunk. A policy should prohibit the conduct outright. A policy should obligate him to self-report his drinking, and should obligate others to report signs of intoxication. (Note well that, especially when dealing with safety-sensitive functions, it's important to differentiate between the employee who comes to work impaired, fails to disclose his or her impairment, and carries out safety-sensitive functions while impaired; versus an employee who comes to work impaired and discloses his or her impairment, and is relieved from safety-sensitive duties on that bais. The latter should certainly be disciplinable - you can't say it's okay for a person to show up to work in a state unable to work - but it's far less severe than the former.
Without these policies, however, it may be difficult for an employer to establish that the conduct is even disciplinable at all.
What Changes in the Legal Cannabis Regime?
In the case of cannabis, this gets even more challenging. With cannabis, current impairment is notoriously difficult to assess. For users, it can be more difficult to predict, as well. With a modest understanding of alcoholic drinks and their effects, it becomes fairly easy to track and calculate overall alcohol consumption, resulting blood alcohol concentrations, how quickly the alcohol will be metabolized, etc. For marijuana, on the other hand, it is nearly impossible for a user to calculate how much THC is in his or her system, or how long it will remain there.
With a good policy, however, an employer can take significant steps to protect its own interests.
Most employers will find that their hands are surprisingly free when crafting cannabis-related policies. Decriminalization does not create a 'right' to consume cannabis. There will be scenarios where an employer will have an obligation to accommodate - dealing, specifically, with medical usage, and with addiction cases - but for most recreational usage, there's not generally going to be anything improper about an employer saying 'absolutely not'. In unionized environments, the drug and alcohol policy is usually going to be the subject of discussion with the union. But in non-union environments, the employer is free to implement as heavy-handed a policy as it wants, subject to few constraints.
When crafting a policy, an employer should consider a number of issues:
Cannabis raises issues of human rights accommodation in two scenarios: Addiction (or 'cannabis use disorder'), and medical usage to treat a disability.
There will be scenarios where employers will be able to persuasively argue that accommodating any cannabis use would amount to undue hardship. But outside of those scenarios, employers may be obligated to seriously evaluate whether or not (a) the employee is entitled to accommodation, and (b) the accommodation can be reasonably provided without undue hardship. If the answer to both questions is 'yes', the employer will be legally obligated to provide the necessary accommodation.
One of the most challenging scenarios for an employer in this area is when an employee seeks accommodation for a disability for which there is limited or no evidence. If you ask an employee to perform a job function, and they respond that they can't because of a medical condition, what should an employer do with that? (In context of cannabis, specifically, this is quite alarming to many employers: If you catch an employee coming to work high, and they claim it's for a previously-undisclosed pain condition, and therefore that they're entitled to accommodation and can't be disciplined, what do you do with that?)
The reality is that an employer has the right - and often the obligation - to investigate accommodation requirements. An employer is not entitled to know the diagnosis, but there is a wide range of information to which the employer is entitled. An employer is well within its rights to insist upon medical verification of the limitations resulting from the disability, the length of time the disability is expected to persist, the nature of the accommodations that would be required to facilitate the employee's continued work, etc.
Consider medical leave, for instance: At its core, medical leave is a form of accommodation - holding employees' jobs open for them while they are unable to perform it. Very often, an employee will provide nothing more than a medical note saying that he or she is unable to work for a period of time. An employer need not accept that at face value: Sophisticated employers will often have forms for the doctor to complete to evaluate the functional working capabilities of the employee, with a policy that requires the employee to have those forms completed in support of his or her claim for medical leave. The point is that, in many cases, an employer will be able to accommodate the employee's conditions with measures short of leave, and better information regarding an employee's actual restrictions will allow the employer to make a more informed decision about what accommodation to provide.
Policies make these rights stronger. In the event that an employee does not cooperate with an employer's attempts to accommodate, the employer's ideal recourse is to be able to point to a disciplinable failure to comply with the policy: That may put an employer in a position to tell the employee, "We need you to either comply with our accommodation policy or perform your full duties", and to discipline them otherwise - not because he or she has a disability, but because of his or her failure to comply with the policy.
Furthermore, while an employer cannot generally require an employee to disclose disabilities before the point of hire, an employer can quite reasonably require pro-active disclosure of accommodation requirements from existing employees. If an employee requires an accommodation in the form of permission to do something that would otherwise be a breach of policy, the employee should seek and obtain permission from the employer before breaching policy. This improves the likelihood that accommodation requests are bona fides (as opposed to somebody trying to make an excuse for misconduct after getting caught).
In the context of cannabis, the fact that there is a legal framework for medical use - though this may be revisited in a few years, and the Canadian Medical Association has recommended phasing out the medical marijuana regime altogether - makes investigation of accommodation requests even easier. There is likely nothing improper about a policy requiring any disability-related usage to be under the medical marijuana regime, allowing the employer to require an employee to obtain a copy of the Medical Document and investigate whether or not the usage is in accordance with the medical authorization.
Ultimately, though, while an employer has substantial rights in this area, policies are deeply necessary to their exercise: You can't assume that employees know the expectations unless you've told them, and it is precarious and risky to discipline an employee for seeking accommodation in the wrong way unless you have set very clear expectations as to how they are supposed to do so.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
One of the areas where legal reforms have not generally been made is in the employment law arena. This is not surprising. In general, substance use and intoxication in and around the workplace has been regarded as a matter for employers themselves to address, in a manner that suits the context of their business and their obligations under occupational health and safety statutes, etc.
In general, there are social norms surrounding alcohol and tobacco use: Don't show up to work drunk; don't drink while at work; smoke in designated areas on your breaks; etc. That said, these norms aren't absolute, and they have their grey areas. In certain professions, it is acceptable or even common to have a decanter of whiskey in your office, or to have a beer or glass of wine with lunch. In other jobs, it is not uncommon for an individual to show up to work in the morning, still intoxicated from the night before.
As such, social norms do not, in and of themselves, amount to enforceable rules. An employer cannot rely on social norms, or common sense, to infer that an employee ought to have known that a beer at lunch would not be appropriate.
A policy, on the other hand, clarifies the employer's position: If a beer at lunch is inappropriate, a policy can make that clear. Particularly for personnel who perform safety sensitive functions, putting a zero tolerance policy into effect is critical, and potentially legally obligatory in light of the employer's obligations to maintain a safe working environment: If your forklift operator is ever wondering how many beers he can safely imbibe at lunch, the answer should be zero.
There should be several failsafes in place against a forklift driver having a few at lunch, then returning to work buzzed or drunk. A policy should prohibit the conduct outright. A policy should obligate him to self-report his drinking, and should obligate others to report signs of intoxication. (Note well that, especially when dealing with safety-sensitive functions, it's important to differentiate between the employee who comes to work impaired, fails to disclose his or her impairment, and carries out safety-sensitive functions while impaired; versus an employee who comes to work impaired and discloses his or her impairment, and is relieved from safety-sensitive duties on that bais. The latter should certainly be disciplinable - you can't say it's okay for a person to show up to work in a state unable to work - but it's far less severe than the former.
Without these policies, however, it may be difficult for an employer to establish that the conduct is even disciplinable at all.
What Changes in the Legal Cannabis Regime?
In the case of cannabis, this gets even more challenging. With cannabis, current impairment is notoriously difficult to assess. For users, it can be more difficult to predict, as well. With a modest understanding of alcoholic drinks and their effects, it becomes fairly easy to track and calculate overall alcohol consumption, resulting blood alcohol concentrations, how quickly the alcohol will be metabolized, etc. For marijuana, on the other hand, it is nearly impossible for a user to calculate how much THC is in his or her system, or how long it will remain there.
With a good policy, however, an employer can take significant steps to protect its own interests.
Most employers will find that their hands are surprisingly free when crafting cannabis-related policies. Decriminalization does not create a 'right' to consume cannabis. There will be scenarios where an employer will have an obligation to accommodate - dealing, specifically, with medical usage, and with addiction cases - but for most recreational usage, there's not generally going to be anything improper about an employer saying 'absolutely not'. In unionized environments, the drug and alcohol policy is usually going to be the subject of discussion with the union. But in non-union environments, the employer is free to implement as heavy-handed a policy as it wants, subject to few constraints.
When crafting a policy, an employer should consider a number of issues:
- Possession: Is it inappropriate for an employee to bring cannabis products into the workplace at all? Consider whether or not an employee's personal effects are likely to be accessible to minors. More broadly, consider whether or not there may be circumstances where an employee might store cannabis at the workplace and the employer, or other individuals, may be said to 'possess' the cannabis within the broad definition given to that term in the Criminal Code of Canada. If such circumstances might arise, then there is a significant problem: The Cannabis Act still criminalizes possession of cannabis by non-exempt organizations.
- Use at or near the workplace, or during work hours: Provincial and Municipal restrictions will often prohibit usage in most workplaces, but this is not universal. Individuals who work outdoors may or may not find themselves able to smoke cannabis products unfettered by legal constraints. More generally, employers might reasonably be concerned about usage on or near their property; by employees wearing a uniform associated with the workplace; or under circumstances that will cause them to smell of cannabis in the workplace. Aside from the obvious intoxication issues of returning to the workplace after smoking cannabis, many employers will not want cannabis associated with their brand.
In some contexts, an employer might reasonably insist that an employee abstain from cannabis products altogether, or a prohibition on public consumption or publication of consumption-related materials, for branding reasons. The Edmonton Police Service has implemented a total abstention policy, and it is not difficult to imagine a wide range of employers being reasonably concerned with certain employees being publicly seen smoking cannabis products: Financial advisers or bank executives, for instance, might find that an association with cannabis will undermine the essential trust for their customers and clients; a school board (and especially a private and/or religious board) might argue that teachers who publicly use cannabis set a bad example for the students.
There's a caveat here: A non-unionized employer has basically unlimited freedom to implement a policy that restricts conduct outside of the workplace (subject only to duties to accommodate), but actually enforcing it - i.e. disciplining and terminating somebody for failing to conduct themselves in accordance with the policy, outside of the work environment - may require a contextual analysis.
However, this caveat does not apply to use on breaks, use while wearing a uniform associated with the employer, use on employer property, or attending at work while impaired and/or with a detectable scent of cannabis. An employer is completely within its rights to dictate these matters. - Intoxication: And, of course, this is the tough one. While the legal regime has established concentration limits for impaired driving purposes, assessing intoxication and testing for it is challenging. While there are signs and symptoms of cannabis use, they will seldom be conclusive. Testing, in many contexts, may be an option, but THC can remain in a person's system long after the intoxicating effect has subsided, and so testing is an imperfect science for detecting intoxication.
In general, most employers will want to outright prohibit intoxication from recreational cannabis. Enforcement has its challenges, though.
For workers who perform safety-sensitive functions (the common parlance refers to safety-sensitive positions or safety-sensitive workers; the reality is that even an accounts receivable clerk might perform safety-sensitive functions if he takes a company car on a bank run), consider a testing regime. There are options. Under some limited circumstances, employers may be able to consider random testing. Some employers may be able to implement testing on the basis of a reasonable suspicion of drug use, or testing following serious incidents. (Other options include testing on pre-employment; pre-assignment; periodic; monitoring; or unannounced follow-up bases.)
However, that 'free hand' I spoke of above does not apply to testing regimes. Drug testing raises a host of privacy and human rights concerns, and can only be implemented and carried out on a basis that can be demonstrated to be reasonable and justifiable under the circumstances. Employers should consult employment lawyers before implementing a drug testing regime.
For more information, Alberta Health Services maintains a useful information sheet relating to drug testing.
Cannabis raises issues of human rights accommodation in two scenarios: Addiction (or 'cannabis use disorder'), and medical usage to treat a disability.
There will be scenarios where employers will be able to persuasively argue that accommodating any cannabis use would amount to undue hardship. But outside of those scenarios, employers may be obligated to seriously evaluate whether or not (a) the employee is entitled to accommodation, and (b) the accommodation can be reasonably provided without undue hardship. If the answer to both questions is 'yes', the employer will be legally obligated to provide the necessary accommodation.
One of the most challenging scenarios for an employer in this area is when an employee seeks accommodation for a disability for which there is limited or no evidence. If you ask an employee to perform a job function, and they respond that they can't because of a medical condition, what should an employer do with that? (In context of cannabis, specifically, this is quite alarming to many employers: If you catch an employee coming to work high, and they claim it's for a previously-undisclosed pain condition, and therefore that they're entitled to accommodation and can't be disciplined, what do you do with that?)
The reality is that an employer has the right - and often the obligation - to investigate accommodation requirements. An employer is not entitled to know the diagnosis, but there is a wide range of information to which the employer is entitled. An employer is well within its rights to insist upon medical verification of the limitations resulting from the disability, the length of time the disability is expected to persist, the nature of the accommodations that would be required to facilitate the employee's continued work, etc.
Consider medical leave, for instance: At its core, medical leave is a form of accommodation - holding employees' jobs open for them while they are unable to perform it. Very often, an employee will provide nothing more than a medical note saying that he or she is unable to work for a period of time. An employer need not accept that at face value: Sophisticated employers will often have forms for the doctor to complete to evaluate the functional working capabilities of the employee, with a policy that requires the employee to have those forms completed in support of his or her claim for medical leave. The point is that, in many cases, an employer will be able to accommodate the employee's conditions with measures short of leave, and better information regarding an employee's actual restrictions will allow the employer to make a more informed decision about what accommodation to provide.
Policies make these rights stronger. In the event that an employee does not cooperate with an employer's attempts to accommodate, the employer's ideal recourse is to be able to point to a disciplinable failure to comply with the policy: That may put an employer in a position to tell the employee, "We need you to either comply with our accommodation policy or perform your full duties", and to discipline them otherwise - not because he or she has a disability, but because of his or her failure to comply with the policy.
Furthermore, while an employer cannot generally require an employee to disclose disabilities before the point of hire, an employer can quite reasonably require pro-active disclosure of accommodation requirements from existing employees. If an employee requires an accommodation in the form of permission to do something that would otherwise be a breach of policy, the employee should seek and obtain permission from the employer before breaching policy. This improves the likelihood that accommodation requests are bona fides (as opposed to somebody trying to make an excuse for misconduct after getting caught).
In the context of cannabis, the fact that there is a legal framework for medical use - though this may be revisited in a few years, and the Canadian Medical Association has recommended phasing out the medical marijuana regime altogether - makes investigation of accommodation requests even easier. There is likely nothing improper about a policy requiring any disability-related usage to be under the medical marijuana regime, allowing the employer to require an employee to obtain a copy of the Medical Document and investigate whether or not the usage is in accordance with the medical authorization.
Ultimately, though, while an employer has substantial rights in this area, policies are deeply necessary to their exercise: You can't assume that employees know the expectations unless you've told them, and it is precarious and risky to discipline an employee for seeking accommodation in the wrong way unless you have set very clear expectations as to how they are supposed to do so.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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