Pubdate: Tue, 18 Apr 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Authors: Robert Weir & Adam Pennell
Page: B4


When recreational marijuana users gather on April 20 for Cannabis Day,
they will have something else to celebrate: much anticipated
legislation which decriminalizes marijuana in Canada. Last Thursday,
the federal Liberal government tabled the Cannabis Act. While this
legislation sets out the path forward for legalizing recreational
marijuana, the responsibility for more detailed laws relating to
distribution and sale will rest with the provinces. All of these
moving parts are expected to come together by July, 2018.

In the meantime, Canadian employers have questions about how to
respond to this changing legal landscape. This uncertainty also
extends, to a somewhat lesser degree, to the Canadian judicial system.
Coincidentally, on April 3, 2017, an Ontario Superior Court judge
declined to grant an injunction striking down a random drug testing
policy sought by the union representing employees of the Toronto
Transit Commission.

Are we at a point now where more liberal attitudes toward recreational
marijuana use in society will be balanced by a more conservative
approach in Canadian workplaces and courts? It is too early to tell.

For employers, a starting point is to realize that changes will not
happen overnight. As with alcohol, legalization of recreational
marijuana will not give employees the right to freely use marijuana in
the workplace. Employers may continue to be able to expect their
employees to show up sober and ready to work.

Subject to medical conditions, employers will still be entitled to
discipline employees whose recreational use of marijuana has an
adverse impact on their job performance. In Ontario, restrictions on
the smoking of tobacco in the workplace would apply equally to the
smoking of marijuana with the passage of Bill 178.

Employers will have to review and amend existing workplace policies
and procedures once the Cannabis Act comes into force.

This legal change may also require a social shift away from
traditional views on the recreational use of marijuana. One key change
will include removing any express policy references to marijuana usage
as an illegal "off-duty" activity.

While such activity will no longer be illegal, employers can still
restrict the use and possession of marijuana in the workplace.

Employers must also be mindful of the use of marijuana to treat an
illness or medical condition. Employee usage should be treated in
accordance with existing policies and procedures on the use of other
prescription medications in the workplace. Under federal and
provincial human rights legislation, employers have a duty to
accommodate employees with disabilities to the point of undue
hardship. The range of accommodation efforts will depend on a number
of factors including the financial ability to accommodate, the type of
work performed and the impact of marijuana use on the employee's
essential duties.

In limited circumstances, employers may also be required to authorize
a leave of absence while an employee undergoes marijuana treatment, or
reassign an employee to alternative duties in a non-safety-sensitive
position. Such employees would likely require reinstatement once they
have recovered from their illness or medical condition. Long-term
disability may also be required, if provided by the employer, in the
event the employee cannot return to work safely.

Employee accommodation must be balanced with the broader duty under
federal and provincial occupational health and safety legislation to
provide for a safe workplace. For example, section 25 of the Ontario
Occupational Health and Safety Act requires that employers take "every
precaution reasonable in the circumstances for the protection of a

Safety-sensitive positions, such as those involving the operation of
heavy machinery, may include essential duties or requirements that
create safety concerns when a proposed accommodation plan includes
marijuana use. If the recent Toronto Transit Commission case is any
indication, this will be an area of considerable litigation in the

All of these potential changes and obligations can leave both
employers and employees dazed and confused. It is important to
recognize that until federal and provincial legislation to legalize
marijuana and regulate its production and use enters into force, the
current criminal restrictions remain.

However, an ounce of preparation goes a long way in addressing
workplace disruptions before they arise. Employers would be well
advised in the meantime to review and prepare to amend existing
policies and procedures.

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Robert Weir is a partner at Borden Ladner Gervais LLP. Adam Pennell is 
an associate at Borden Ladner Gervais LLP. Both are members of the 
labour and employment department.
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