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What will my rights be about marijuana in the workplace?

Whitten and Lublin | Oct 05, 2018

Marijuana in the workplace can be broken down into two categories. Recreational use and medicinal use.

Recreational use:

Workers should expect the same rules to apply for marijuana in the workplace with regards to recreational use as any other drug that may cause impairment. In other words, if your workplace has a substance abuse policy, the same policy will apply to marijuana used for recreational purposes. If a worker is impaired in the workplace as a result of recreational marijuana use, absent of any addiction, disciplinary action could take place.

Accordingly, if a worker suffers from an addiction, human rights law would apply. In this scenario, the employer would have to accommodate up to the point of undue hardship. Accommodation may involve work-schedule modification to allow the employee to attend support programs, doctor appointments, and so forth, in an effort to overcome marijuana dependency. Exceptions to attendance policies may be necessary as well, as absences due to addiction must also accommodate up to the point of undue hardship.

Medicinal Use:

Just as with addiction, marijuana use in the workplace for medicinal purposes must also be accommodated for up to the point of undue hardship. This may include the employer allowing an employee to used marijuana while at the workplace, provided this does not cause undue hardship for the employer. Undue hardship is most likely to occur in safety-sensitive workplaces, where marijuana use would result in impairment, thus heightening the risk of an accident in the workplace. Employers here would need to balance an employee’s rights not to be discriminated against on the basis of illness, and the employer’s obligation to provide a safe workplace for its employees.

In any scenario, accommodation should involve problem-solving efforts between employees, employers, and an employee’s medical personnel. Exploring options while considering the information provided by an employee’s doctor(s) will be necessary, and some hardship is definitely to be expected by employers. Employees must also be willing to provide information necessary the employer would need for accommodation purposes, and be willing to accept a reasonable accommodation that an employer offers.

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