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July 4, 2018

Weed and the Workplace

Recreational marijuana is expected to be legal in Canada as of October 17, 2018. In preparation for this landmark change, we wanted to give employers and employees a heads up on what it might mean for them.

At the outset, it’s important to keep in mind that marijuana being legal doesn’t mean that employees suddenly have free rein to use it at work. We can expect that, as with alcohol, most employers will prohibit the use of marijuana in the workplace and, generally speaking, this will be within their rights.

The bigger question is to what extent an employer can regulate marijuana-use outside work hours. Unfortunately, there’s no simple answer. When considering an employer’s approach to marijuana, courts and tribunals balance a variety of interests, such as an employer’s right to a productive workforce and an employee’s rights to privacy and the protection of their human rights.

Because of these different considerations, an employer who relies on across-the-board mandatory drug testing policy is more likely to run into trouble. Having said that, if the workplace is safety-sensitive (e.g. truck driving), an employer will have a lot more leeway to regulate marijuana use.

Employers also need to tread carefully when it comes to zero-tolerance policies on marijuana use. If an employer prevents all off-duty use of marijuana and some employees use it medically, this could contravene the Ontario Human Rights Code if accommodation was a reasonable alternative. Employers should therefore be careful to approach recreational and medical marijuana differently.

We can expect the law in this area to evolve as marijuana becomes more accessible and therefore, presumably, much more widely used. We will continue to keep you updated on these changes.

At Millard & Company LLP, we have extensive experience developing workplace policies for employers and challenging unreasonable policies for employees. If you have questions about your legal rights and obligations, contact us to discuss your options.

By Mika Imai; photo Torben Hansen, cc.

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