The Canadian and Ontario governments have now announced the Rules and Regulations for marijuana, which is set to become legal across Canada for recreational use in October of this year. The legalization of marijuana raises many new challenges and concerns about the effect on workplace safety.
Can recreational marijuana be used at work?
Short answer: no. The Ontario regulations only permit the use of recreational marijuana in private residences. Use elsewhere, such as in cars, public parks, or workplaces can result in provincial offences and fines up to $5,000.
Ontario’s rational for this law is “to protect people from second-hand cannabis smoke, and reduce youth and young adult exposure to cannabis.”
Can an employee be high at work?
Impairment is a long standing issue in the Ontario workplace and marijuana use will complicate things further. Marijuana has psychotropic effects which, like alcohol, can impair judgement, however a direct connection to workplace incidents has not been definitely established. Maclean’s released an article on the health effects of marijuana in the workplace and reported that:
Several studies have examined the impact of marijuana use on workplace outcomes, but with mixed results.
Some have found associations between marijuana use in the workforce and work absenteeism, reduced productivity, job turnover, disciplinary measures, workplace accidents and injuries, unemployment and interpersonal conflict.
However, other studies have found no association with some of these outcomes. Overall, the evidence to date is quite inconsistent.
In 2017, the U.S. National Academy of Sciences published a major report on the health effects of marijuana use, including impacts on injuries and accidents in a workplace setting.
Based on six studies, the review did not find enough evidence to either support or refute a statistical link between marijuana use and occupational injuries or accidents.
The Occupational Health and Safety Act (OHSA) already imposes strict obligations on employers to keep their employees and workplaces safe. These obligations include ensuring workers are not introducing hazards to the workplace as a result of impairment arising from marijuana use.
What obligations an employer has will depend on the individual circumstances of the workplace. The appropriate policies and measures will be different. For example, if an employer, manager or supervisor becomes aware that a worker who operates heavy machinery appears to be impaired, the appropriate steps would be different from an employee who works at a desk most of the day.
In all circumstances a duty is owed to ensure the health and safety of workers are protected and the OHSA is being complied with.
What about Medical Marijuana in the Workplace?
Like any other prescribed medication, Ontario employers have a duty to accommodate an employees illness, including the use of medicinal marijuana in appropriate places around the workplace in accordance with doctor’s directions.
The duty to accommodate extends to the point of undue hardship. A prescription for medical marijuana does not entitle an employee to compromise the safety of themselves or others. Nor does it entitle them to smoke around others or in doors – Smoke-free Ontario laws apply to the smoking marijuana in the same way they do for cigarettes. However, an employer may have to permit an employee a suitable workplace accommodation to use their medication.
What should I do if I am an Employer in Ontario?
If you already have good policies in place, then they will not need to be drastically changed.
To ensure a safe and hazard free work environment, employers should conduct a risk assessment of marijuana in their workplace, then update their written measures to control the risks or, where practicable, eliminate the hazards identified from substance abuse. It may be a good idea to provide training to management or supervisors on the signs of marijuana intoxication.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.