​The Legalization of Marijuana: Legal and Social Shifts that Affect the Ontario Workplace

April 20th marks the pseudo-international holiday for cannabis culture, known in many communities as “420” (pronounced four-twenty). In several cities around the world, people gather to both celebrate, smoke and peacefully advocate for the legalization of cannabis.  In Canada, the largest gatherings on April 20th take place in Vancouver, Ottawa, Montreal, Toronto and Edmonton.  One only need do a simple Google search to realize the growing following for this festival like gathering of music, vendors, booths, official sponsors and prominent speakers. 

When Canadian users gather for this year’s “420” however, they will have a different, long-anticipated reason to celebrate: the April 13th Liberal announcement of the legislation which decriminalized marijuana.  This announcement set many Canadian employers ablaze with questions as to how they are required to respond to the changing legal and social Canadian landscape. 

What does the legalization of marijuana mean for Canadian employers?

The first thing employers need to realize is that the current legislation is merely a stepping stone for the legalization of recreational marijuana as the actual laws regarding the production, use, sale and distribution will fall to provincial legislation and likely not until July 2018.   This means that before Canadian employers become dazed and confused, they have time to prepare their businesses for the pending legal and social changes. 

One major change employers should recognize is the social shift away from conservative views on recreational marijuana.  Does this mean employers should be prepared to excuse unsafe behaviour of stoned workers? Of course not! It means that employers should review and modify their workplace policies and procedures to reflect the removal of references to marijuana usage as “illegal”.  Employers will still have the right to restrict the use and possession of marijuana in the workplace. Specifically, Ontario employers should be aware that the same restrictions of smoking tobacco in the workplace will apply to the smoking of marijuana. Employers also have the right to discipline employees for recreational use of marijuana if the impact of the drug impacts performance, just like with alcohol. 

However, also just like with alcohol, employers are required to accommodate disabilities to the point of undue hardship, which means employers need to be mindful of the use of marijuana to treat certain medical conditions and illnesses.  Human Rights legislation would therefore suggest the range of accommodation would depend on an employer’s financial ability to accommodate, the type of work performed and the impact of marijuana use on the employee’s essential duties. Employers should be aware however that such accommodations should be balanced with their broader duty to provide a safe workplace under section 25 of the Ontario Occupational Health and Safety Act.  This means that with safety-sensitive occupations, such as those involving heavy equipment, a balanced approach is required when accommodating medical marijuana in the workplace. 

Employers should also be aware that not every government agency is prepared for the implications and consequences of the Cannabis Act. For instance, the Workplace Safety and Insurance Act does not have specific policy regarding the use, distribution or coverage of medical marijuana.  Currently, the Tribunal approach to the entitlement for medical marijuana is as follows:

• While the WSIB drug formulary does not specifically authorize the use of medical marijuana, there is a discretion under the Workplace Safety and Insurance Act, 1997 to authorize the payment of medical marijuana in appropriate cases.
• Prior Appeals Tribunal decisions have noted there is a lack of “high quality scientific studies documenting the efficacy of marijuana in treating pain and that marijuana is also a commonly used recreational drug.” The Tribunal is of the opinion that given these circumstances, there is a “clear potential of individuals to make inappropriate requests for reimbursement of the cost of marijuana”.
• In order to address these concerns, prior Tribunal decisions have emphasized certain requirements in order for entitlement to reimbursement for medical marijuana to be established:
  • The worker’s pain should be constant and debilitating;
  • Clear evidence that other methods of assisting the worker to deal with this pain have been shown to be ineffective;
  • There must be “reliable medical evidence” that the worker’s physicians have formed “reasonable opinion that medical marijuana has been effective in assisting the particular worker in dealing with his or her compensable impairment”.
  • In a number of cases, the effectiveness of medical marijuana has been demonstrated by the elimination or reduction of the worker’s use of narcotic medications.
  • There should be a lack of contraindications regarding the use of marijuana, such as a history of overuse or abuse of marijuana, or an escalated risk of abuse or negative psychological impacts.
  • The worker must have the appropriate authorization to use and possess medical marijuana from Health Canada.

The legalization of recreational marijuana brings some of the above requirements into question as to their continued appropriateness. For instance, the lack contraindications regarding the use of marijuana, especially if said use is now legal.  How will WSIB address the legal and social shifts to the acceptance of recreational marijuana?

Employers should remember that until all the above potential changes officially come into force, current restrictions remain in place.  However, it is in their best interest for employers to begin reviewing and amending their policies and procedures to reflect potential workplace changes.
 
Do you have questions regarding medical or recreational marijuana in the workplace? Contact Anna Aceto-Guerin at Clear Path Employer Services with your questions or concerns.

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