Canadian HR Reporter, 2019
May
15,
2019
|
Canadian
Employment
Law
Today
ABOUT THE AUTHOR
Nathaniel Marshall
Nathaniel Marshall is an associate lawyer with
Turnpenney Milne LLP, practicing in all areas of
employment and labour law. For more information,
visit turnpenneymilne.ca.
CREDIT: BY JOSHUA RAINEY PHOTOGRAPHY/SHUTTERSTOCK
ployer has sufficient information, it must
consider how the employee's disability can
be accommodated. is analysis requires
the employer to make reasonable efforts
to determine if the employee can stay in
their current position with modifications
to that position, or if the employee should
be placed in a different position with modi-
fications, if necessary.
Insofar as the duty to accommodate con-
cerns the use of medical marijuana, the fol-
lowing principles should be kept in mind:
• Provincial and municipal laws prohibit
smoking in the workplace
• A prescription for medical marijuana
does not automatically entitle an employ-
ee to use marijuana in the workplace
• A prescription for medical marijuana
does not entitle an employee to be im-
paired or under the influence of medical
marijuana at work
• Employee health and safety, as well as
the health and safety of others, cannot be
compromised by the employee's use of
medical marijuana.
Aside from employees who use medical-
ly prescribed marijuana, employers must
also be cognizant that some employees may
have dependence issues or an addiction to
marijuana, which is considered a disabil-
ity under human rights legislation and re-
quires a similar duty to accommodate to
the point of undue hardship.
Ultimately, employers are not required to
create a perfect accommodation solution,
or to even provide the employee with their
ideal accommodation. What they must do,
however, is make reasonable efforts to pro-
vide accommodation to the point of undue
hardship.
e takeaway for employers
Not long ago, the idea of an employee
walking into a retail store on a break to pur-
chase recreational marijuana seemed like a
distant possibility. Nonetheless, it is now a
reality that employers must be cognizant of
and consider the impacts that recreational
marijuana use may have on the workplace.
As the law continues to evolve in this area,
employers must ensure that any policies
they implement with respect to marijuana
in the workplace are carefully drafted and
do not infringe on employee privacy or
violate the applicable human rights legisla-
tion. In the short term, and at least for em-
ployers who choose to act in haste, this will
likely cause more lows than highs.
