Marijuana and the workplace: Legalization is coming

On December 13, 2016, the federal task force on marijuana legalization delivered its report to the Government. Among other things, the task force recommended a minimum age for purchasing marijuana, plain packaging with warnings, studies to determine marijuana’s effect on motor vehicle accidents, and the use of proceeds from sale to fund a national education strategy to stress that cannabis consumption causes impairment.

The task force’s report brings Canada one step closer to legalizing a drug that is described on the Government’s website as causing the following mental effects:

Loss of short-term memory, impaired ability to focus and pay attention, impaired ability to concentrate and learn, loss of motor coordination, poor reaction time, impaired judgement and ability to think, sleepiness, dizziness, fatigue, psychotic episodes, mild paranoia, anxiety, and fear, panic attacks, perceptual distortions (visual, auditory), severe agitation, disorientation, and confusion.

A poll of Canadians conducted in 2015 found that 20 per cent had smoked marijuana in the previous year and more than 30 per cent said they would smoke marijuana in the next year if it were legal. It is understandable that employers in Canada are concerned about the potential impact of legal marijuana in the workplace.

One source of concern stems from the potential for marijuana use to impact the safe operation of the workplace. Regulation 4.20[1] of the Occupational Health and Safety Regulation, BC Reg. 296/197 provides as follows:

(1)      A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2)      The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

Safety, productivity and performance reinforce employers’ interests in preventing employees from attending work when their mental function is altered by a psychoactive drug. The question is whether the legalization of marijuana will have any impact on these interests.

Over the course of the next month we will review the legal landscape pertaining to marijuana use in the workplace. Specifically, we will address an employer’s current rights around testing for marijuana, whether or not impairment must be established prior to discipline being imposed, and finally, whether an employee without a prescription needs to be accommodated under Human Rights laws. A review of these topics suggests that little will change with legalization. As the law stands today, employers have a legal duty to prevent employees from attending work while they are impaired, as well as a duty to accommodate the prescribed use of marijuana to treat a disability. These duties will not be modified by legalization. While establishing that an employee has consumed marijuana will continue to present a challenge not faced with alcohol, this challenge exists presently and legalization is likely to spur advancements in testing that will ultimately benefit employers.

Questions about the content of this article may be directed to Brad Cocke.

[1] Coincidentally, 420 is slang or code for the consumption of marijuana, particularly at 4:20pm and on April 20th each year. 420 is also the name given to the annual “smoke out” festival held in Vancouver on April 20th.