While the possession of marijuana presently remains unlawful in
Canada under the Controlled Drugs and Substances Act, its
use for medical purposes is permitted under the Regulations to the
Act. The Canadian government has also announced its
intention to legalize the substance in the near future for
What does this mean for employers?
In the context of non-medical use, marijuana (whether legal or
not) can be treated in substantially the same way as the use of
alcohol under a workplace drug & alcohol policy. Employers have
the right to prohibit the use of marijuana during work hours, and
to further prohibit attendance at work while impaired. Breach of
these prohibitions can properly be made the subject of progressive
discipline, and in appropriate cases could result in termination of
employment for just cause.
Where an employee is "addicted" to marijuana, however,
such addiction will constitute a "disability" under human
rights legislation, triggering the employer's duty to
accommodate the employee's disability to the point of undue
hardship. There have already been many cases in the unionized
environment where employers have been required to reinstate
employees fired for drug use, based on the employer's failure
to accommodate the employee's substance addiction as a
With the advent of "medical" marijuana use, the
situation for employers is further complicated. On the one hand,
employers need to have policies in place permitting the medical use
of marijuana in the workplace where supported by appropriate
medical evidence. On the other hand, employers continue to have the
right to prohibit impairment on the job, particularly in safety
sensitive positions. It will not always be easy to balance these
Pro-active employers will update their policies to address
issues relating to both the medical and non-medical use of
marijuana in the workplace. Where an employee claims medical need
for marijuana, employers should require proof of prescription,
together with specific information regarding the frequency, volume
and method of ingestion relating to such medical use, for the dual
purpose of assessing impairment and structuring appropriate
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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