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Marijuana in the workplace: What your boss can and can't do

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With the legalization of recreational marijuana upon us, employers coast to coast are trying to figure out what it means for them and their employees. 

Some companies, like WestJet and Air Canada, aren’t taking any chances with recreational cannabis by banning its use among key personnel, while Toronto police have placed strict restrictions on pot use by its officers by prohibiting its use within 28 days of reporting for duty. 

However, human resources lawyer Ryan Anderson says that in tackling newly legal pot, most companies that have a well developed and up-to-date drug policy will only have to make minimal changes with recreational cannabis now on the horizon. 

“The reality is what your drug and alcohol policies should be focused on is an impairment-free workplace,” Anderson told Yahoo Canada Finance. “Most policies are already fairly well positioned and don’t require a heck of a lot of change in order to deal with this pending legalization.”

The Canadian Centre for Occupational Health and Safety (CCOHS) also says that like alcohol, employers can prohibit the use of marijuana at work through policies. And much like how employees can’t show up to work drunk, employers can also prohibit employees from showing up to work high. 

According to the CCOHS, some provinces also have provisions about workplace impairment in their legislation. British Columbia and the Yukon require workers to inform their employers of any impairment and must not enter or remain at work while impaired. Other provinces and territories have industry-specific provisions. 

However, Anderson said that if an employer suspects and employee might be high, proving it may be a challenge as drug testing has been a sensitive issue in the workplace. 

“There are proven mechanisms to assess blood alcohol content and assess current impairment by alcohol, by contrast it’s much more difficult to test for current impairment [for marijuana],” he added. 

Anderson has also said that testing drug alcohol use in the workplace may reduce risks, but doing so often raises concerns about privacy and discrimination. 

And even if employers institute a zero-tolerance policy around recreational marijuana use, it may still be a challenge to prevent pot use among employees. The CCOHS says that employers may still have to accommodate marijuana use for medicinal reasons until the point of undue hardship. 

And addiction may complicate matters for some employers as since it’s considered a disability, they may still need to accommodate employees who might have a dependence issue with marijuana.

“A person needs to be accommodated. It still does not give an individual the right to work impaired,” CCOHS senior technical specialist Jan Chappel said. “At the same time, they have to maintain a safe and healthy workplace. The person cannot be working impaired.”

For employers, Chappel says that when it comes to legalization, they fear the unknown the most. 

“They don’t know how much impact they’re going to see once it becomes legalized,” she said. 

“People have become more educated on what is fact and fiction for cannabis and that has helped a lot, but there’s a lot of unknown out there as well.”

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