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- (2/13/2018)

Miller Thomson LLP - Claudia Desjardins Belisle and Daphnée Beauchamp

With the expected coming into force in July 2018 of Bill C-45, which intends to legalize the recreational use of marijuana, many employers have expressed concerns about its impact on workplace accidents, absenteeism and performance especially in organizations where workplace health and safety is critical.

Their concerns are not unfounded since, in the eyes of the law, employers are responsible for taking the necessary measures to protect the health and safety of their employees. For their part, employees are responsible for respecting their employer’s rules and policies, particularly with regards to the protection of workplace health and safety.

Just as with alcohol and other controlled substances, in exercising their management rights, employers will be able to restrict or prohibit the use of marijuana in the workplace as well as the act of reporting to work under the influence of marijuana.

However, managing marijuana in the workplace comes with an additional challenge for employers, namely detecting the use of marijuana. At this point in time, no screening device can accurately measure the degree of impairment due to marijuana use nor determine with precision when it was used.

Furthermore, as with alcohol, the strict prohibition of marijuana consumption by employers will be subject to certain limits. In principle, a zero-tolerance policy may not be used as sole justification for conducting random or systematic drug testing or to discharge an employer from its duty to accommodate medical use of marijuana and dependency problems.

The upcoming legalization of recreational marijuana is a great opportunity for concerned employers to adopt or update their drug, controlled substances and alcohol policy to clarify their expectations and to restrict the use of alcohol, drugs and medication in the workplace.

In this regard, any such policy should, notably:

a) Specify its scope of application;

b) Establish the scope of the prohibition and the employer’s expectations;

c) Provide the employer’s definitions of certain fundamental terms, such as “drug addiction”, “impairment”, “dependency” and “workplace”;

d) Recognize the employer’s duty to accommodate medical use of marijuana or an employee’s dependency as well as the employee’s corresponding obligation to disclose any dependency to the employer;

e) Recognize the implementation and application of employee assistance services, where available;

f) Set out the administrative procedure applicable for cases where an employee is considered to be unable to safely perform his or her work;

g) Determine the circumstances under which the employer could conduct drug testing within the limits provided by legislation and case law; and

h) Set out the applicable disciplinary procedure and sanctions for cases where a policy violation has occurred.

Once finalized, the policy must be clearly communicated to all employees. This is the employer’s opportunity to educate and create awareness among employees, particularly among supervisors and managers who will need to be able to recognize the signs of potential intoxication to take quick action. In some circumstances, an internal procedure may also be required.

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