Cannabis workplace laws give HR legal headache

There's still a haze of confusion around 'inebriation' policies in the workplace

Cannabis workplace laws give HR legal headache

Cannabis laws continue to give Canadian employers a headache, as a haze of uncertainty surrounds new policies. Speaking to Mike MacLellan, partner at Crawford Chondon & Partners LLP, he reveals that regulations need to be updated and maintained in order to remain legally enforceable – especially as hybrid models gain popularity.

“Legally speaking, an employer is allowed to implement any workplace policy that they want, so long as it is done in good faith, for a legitimate work-related purpose, it does not violate a workplace law or contact, and it’s not discriminatory. This is the case with any drug and alcohol policies. When cannabis was first legalized there was uncertainty around how it could impact employers and employees – what would the social aspects of this be? If employees were consuming cannabis at a work event much like they would a glass of wine, there’d need to be parameters. Essentially, it’s about understanding that workers are still a representative of your business – and the rules of the drug and alcohol policies still apply.”

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One of the more complex aspects of the cannabis laws revolves around medical marijuana. Just like with any other potentially impairing drug, employers should have a policy in place. That policy may be under the larger umbrella of a drug policy or even a medicinal policy – like the ones which deal with pain killers. However, when a dependence on drugs or alcohol is the issue, employers need to look closely at their accommodation requests. 

“Drug and alcohol dependence is, legally speaking, a disability,” says MacLellan. “As with any disability, the employer needs to accommodate it to the extent necessary to allow the employee to attend work and be productive. That’s up to the point of undue hardship.”

There’s a range of appropriate accommodations here. If we're talking about alcohol dependence then it will most likely mean some time off of work to go to counselling meetings or support groups.

“It could be time off of work to go into a rehabilitation program or otherwise get medical treatment,” says MacLellan. “However, what an employer doesn't have to tolerate is flat out impairment in the workplace. That would most likely constitute an undue hardship, both in terms of health and safety and productivity of the employee. And, if the employee is being accommodated but the problem is persisting, we may reach the point where the employment relationship is frustrated and therefore severed.”

The advent of remote work only compounded these drug and alcohol laws. With more and more employees opting to work from their own homes, questions around monitoring and privacy continue to swirl. If an HR leader suspects that an employee is drinking or smoking cannabis whilst working from home, what should they do?

“There’s a reasonable expectation that what somebody does in the privacy of their own home isn’t really the employer's concern,” says MacLellan. “However, the caveat to that is if it has a significant negative effect on the employer's business. Then it absolutely is the employer's concern.”

Looking at some of the Workplace Safety and Insurance Board cases in Ontario, it’s clear to see that work from home accidents, at home and during work hours, are being considered workplace accidents. As such, it's reasonable to expect some monitoring of the health and safety of the employees.

Read more: Hybrid work: How to engage a multi-generational workforce

“I think employers have to be diligent with their employees working remotely,” says MacLellan. “Issues such as workplace violence and harassment is still something we have to watch out for - even when people aren't in the in-person environment. While we would hope those kind of incidents are reduced when people are working in isolation, that’s not necessarily the reality. I think employers need to let people know that these policies still exist, that the policies are still applicable, and that failure to abide by them could have consequences.”

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