Posted on October 16th, 2018 in General Business, Human Resources Advisory

Cannabis and Your Workplace

Medical marijuana (leaf with hospital cross)

The Government of Ontario has strict rules in place to ensure a safe workplace.  Consuming recreational cannabis in the workplace is illegal (and will continue to be) even after legalization on October 17, 2018.  Once legalized, the consumption of recreational cannabis would only be permitted in specific places, as outlined in the Cannabis Act, 2017.

Medical marijuana is a different story.  Medical Marijuana must be treated like any other prescription medication and is subject to the rules outlined in Ontario’s Occupational Health and Safety Act (OHSA).  Both the employee and employer should be aware of their obligations as it relates to cannabis in the workplace.

Employer Responsibilities

Under section 25 of the OHSA, employers have the duty to “take every precaution reasonable in the circumstances for the protection of a worker.”  Therefore, employees do not have the right to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers.

In order to gauge the employee’s ability to safely perform their job under the influence of prescription marijuana, the employer can request medical documentation from the employee.  If the inquiry discloses a meaningful impairment in the employee’s capacity to carry out his or her job, then the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment.

Employers are required to prepare and review (at a minimum annually) a written occupational health and safety policy.  As part of this policy, employers should consider adding a section (or a stand-alone workplace drug and alcohol policy) that specifically addresses workplace impairment arising from substance use.  Employers should also strive to effectively communicate the responsibilities of employees seeking to use medical marijuana.  One example could be to provide training to workers and supervisors on the dangers of using equipment or machinery while impaired, including how to recognize the signs of workplace impairment.

Employee Responsibilities

Even though workers do not share the same obligations as employers for ensuring every reasonable precaution for the protection of a worker is carried out, they do have general duties that would require them to take certain steps if they encounter a hazard arising from workplace impairment due to substance use.  This may include hazards caused by their own impairment, or awareness of other workers who may be impaired and who may pose a hazard in the workplace.

A worker must report any contravention of the OHSA or any known hazard to their employer or supervisor.

Employees in safety-sensitive positions are required under the OHSA to inform their employers if they are going to be using medical marijuana.  Safety-sensitive positions are defined as a position where the employee holding the position has the responsibility for his or her own safety or the safety of others.

Under the OHSA, employees are prohibited from using or operating any equipment, machine, device or thing, or working in a manner that may endanger themselves or any other worker.

Our Recommendations

Medical marijuana can be prescribed to cope with a number of conditions such as arthritis, cancer, chronic pain, or sleeping disorders.  As such, employers should accommodate as they would any other prescription drug.

Employers should review their workplace policies and proactively communicate the responsibilities of employees seeking to use medical marijuana.  Employers should also consider engaging employees and/or the health and safety committee when deciding on accommodation plans and workplace policy changes.  Be sure to include appropriate examples of accommodation plans and what kinds of disclosure protocols to implement (especially as it relates to safety-sensitive positions).  Employers are encouraged to fully understand their obligations with regards to accommodation, the appropriate circumstances for drug testing, and the degree of reimbursement they must provide employees who require medical marijuana.

More information can be found on the Ontario Government website.  Do you require assistance writing a policy or would you like help implementing these new regulations in your workplace?  Please contact one of our HR advisors and we would be pleased to assist you.