Canadian HR Reporter

On Oct. 17, Canada became the only fi rst-world nation to fully legalize recreational marijuana. We spoke to two leading employment lawyers about how this new legislation will affect the workplace. Their answers may surprise you. "The fact that marijuana is legal in Canada doesn't mean that obligations in the workplace are different. Alcohol is something we can't consume and then participate in work. And if you put recreational marijuana in the same category, the same principles apply," said James D. Heeney, partner at Robinson Heeney LLP. Does this mean employers can lump marijuana into their existing policies about substance use and consider the issue covered? Not exactly. Heeney says this is high time to update HR policies to be clear about cannabis use. It's also a good time to address your organization's approach to medicinal marijuana – something David Whitten, partner at Whitten & Lublin, says should already be covered. "Everybody's excited about the marijuana legalization, but the real watershed moment happened two or so years ago when it became recognized as medicinal treatment and has needed to be accommodated in the workplace if prescribed by a doctor," he said. Heeney recommends creating a fulsome policy that considers the ricochet effects of recreational marijuana use on the workplace. While your policy may stipulate that employees are not permitted to be intoxicated at work, it's possible for someone to have a drink at lunch and not appear to be affected. The same may hold true for an employee who consumes a small amount of marijuana via odourless vaping. Heeney advises setting clear expectations about what employees need to do, which may include a zero-tolerance approach to alcohol or drug consumption of any kind during the workday. Whitten advises writing in the consequences of breaching the policy. "Be clear: if you come to work stoned, you're subject to discipline. You can progressively discipline and ultimately terminate unless they show up with a doctor's note." And what about work functions outside the offi ce? Many businesses entertain clients at lunch or after hours, and alcohol may be a part of these social events. Heeney says policies will need to be modifi ed to address whether marijuana will be in the same category as alcohol. "We don't know for sure because there is no case law on it, but I believe it will be okay [to put limits on marijuana]," he said. It's important to communicate the changes so there is no confusion about what is acceptable in your workplace. "The only way people will be held accountable for breaching a workplace policy is if it's clear. Just changing a policy and putting it on your intranet site is not a good approach," said Heeney. "The easiest way to 'make sure' is to have a training seminar or a meeting with all employees and walk through a bunch of examples." Medicinal marijuana is a more complex issue in the workplace. If an employee has a prescription for the use of medical marijuana during working hours, the company needs to be advised and assess what they can and can't do to accommodate it. "Legislation says that you have to accommodate medical conditions in the workplace to the point of undue hardship. And there's no hard and fast rule – it differs from each workplace and situation," said Whitten. "One thing that has emerged is that if somebody is in a safety-sensitive position and the marijuana impairs their ability to do their job, such as operate heavy equipment, you're entitled to decline accommodation." This becomes trickier when an employee's responsibilities don't include driving or operating heavy machinery. "This is the part that the law is going to struggle with." said Heeney. "If you're concerned about their ability to carry out their job while taking medicinal marijuana, you might create a job description for the role and ask them to take it to their doctor to determine whether they can perform all their duties," said Whitten. If you ultimately determine that the employee can't be accommodated, and the case goes to the Human Rights Tribunal, you will need to prove you went through a process of evaluating options before denying accommodation. If it's been established that an offi ce employee can be accommodated, Whitten says it's within the rights of an employer to impose restrictions on how and where they can consume medicinal marijuana. However, he cautions employers to avoid bias when it comes to medicinal marijuana. "There's the Cheech and Chong stereotype that somebody is going to want to sit around eating Doritos and that's not true. Depending on [the] strength of it and whether it's got more CBD versus THC… it's not a high they get off of it, it's more of a mellow feeling. They can still work with numbers and computers." "A person can be productive, concentrate and may even be able to deal with customers. You can't assume they're going to be totally incapacitated." It's also important to remember that medicinal marijuana comes in many forms, including edibles. "When somebody has a medical note [HR can] inquire if they can get the same effect by eating it," said Whitten. "When people see [smoke] and smell it on them, that can have a disruptive effect for other workers. It's not out of bounds to ask whether the employee can vaporize or eat it so that it's minimally intrusive in the workplace." When you're not sure about the law, Heeney suggests getting legal advice as you put together your policy and the fi rst few times accommodation requests for medicinal marijuana comes up. "You don't have to write a whole new policy [to include new legislation]. Tweak what you have and consider getting it reviewed by an employment lawyer. If the Human Rights Tribunal feels those policies are not reasonable, they can rule that there is a breach even if it seems unwarranted." Marijuana & the Workplace Employment lawyers say it's high time to update your workplace alcohol and drug policies Read our leading–edge insight and content online at hrprofessionalnow.ca – or keep up on the go by downloading the HR Professional mobile app straight to your phone. By Heather Hudson

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