What employers need to know about marijuana in the workplace

On April 13^th, the federal government unveiled a bill that would legalize recreational marijuana in Canada by July 2018. If passed, the legislation would allow people over the age of 18 to buy marijuana, publicly possess as much as 30 grams of cannabis, and grow up to four plants (per residence).

Confused about what this means for you and your company?

Here are a few things employers need to know about marijuana in the workplace.

This affects more people than you might think

According to a poll by the Weed Blog (your source for “Marijuana news and information”), 10% of Americans report smoking weed before going to work. If that sounds puffed up, consider this: in 2012, 12% of Canadians (aged 15 or older) had reported smoking marijuana in the past year.

Currently, there are 75,166 patients registered under the Access to Cannabis for Medical Purposes Regulations, and according to Health Canada, the total number of patients in the program is expected to reach 450,000 by 2024. Add to that an additional 900,000 Canadians likely to smoke pot at least once a month if the new legislation is passed, and you suddenly have a lot of pot users.

“Weed-friendly” companies already exist

Colorado has become something of a model for legalization, adding $2.4 billion and 18,005 full-time jobs to the state’s economy in 2016. It may also prove to be the testing ground for a wider acceptance of pot use in the workplace. Colorado companies Flowhub (a software provider for the cannabis industry), MassRoot, and High There! (both social networks for weed users) all allow employees to bring weed-infused edibles and beverages to work.

“If it helps our employees get work done, then we don’t care if they consume at work,” Kyle Sherman, co-founder of Flowhub, told CNN.

So far there is (admittedly anecdotal) evidence to suggest it’s working for them: Flowhub has processed close to $200 million in cannabis purchases, and raised an additional $3.25 million in investor funding.

These companies may be quirky outliers, but according to a 2015 survey, a fifth of small business owners said they would allow employees with medical marijuana prescriptions to use cannabis at work, indicating that mentalities might be shifting. In fact, Elite Daily felt the need to publish the “Productive smoker’s guide to smoking marijuana on the job,” which suggests sticking to the Sativa strains, and keeping a “stoner kit” in the office.

You have a duty to accommodate medical usage

If an employee has a prescription for medicinal marijuana, you have a duty to accommodate him or her.

“It’s no different than any other accommodation – whether it’s accommodating someone with a bad back or a religious observance,” says Stuart Rudner, a founding partner of Rudner MacDonald LLP, which specializes in Canadian employment law.

The challenge for employers is understanding when accommodation is required.

“It’s up to the employee to make that need known, and that can be difficult from an employer’s point of view; you can’t, for example, ask for a diagnosis or medical history. What you can ask for, though, is the limitations on the individual’s ability to carry out their job functions,” he says.

To determine these limitations, many companies use functional ability forms to understand things like how long a person can stand, or the amount of weight they can lift.

“It’s a bit different in the context of marijuana, but what you can ask is how often the individual expects to use marijuana, and what will the impact be on their ability to do their job?” Rudner says.

It may, however, fall to medical professionals to assess a person’s degree of impairment.

“One Tylenol is the same as every other Tylenol, but one gram of marijuana is very different from another gram of marijuana. Effects can depend on how long and where it’s been grown, and other factors. So you need to understand how much it’s going to impair the individual, and that might be up to a doctor to provide that information,” he says.

Either way, effective communication with employees, particularly those seeking accommodation, will be increasingly important. Consider the case of Wilson vs. Transparent Glazing Systems. Glazier Gregory Wilson held a cannabis prescription for back pain and migraines, but was fired after someone complained about him being impaired on the job. Wilson alleged discrimination on the basis of disability and his use of medication. The company countered that he was just incompetent and fired for poor performance.

The British Columbia Human Rights Tribunal agreed with the company’s assessment of his work, but nevertheless sided with Wilson. Transparent Glazing might have tired of Wilson’s poor performance, the Tribunal argued, but the company only acted once they received a complaint about Wilson’s impairment. At no point did they discuss his performance issues (or the effect his disability might have had on those issues) with him – making the termination discriminatory.

Drug policies will be more important than ever

As the recreational use of marijuana increases, employers’ drug and alcohol policies need to be thorough and well-thought-out, with a focus on transparency.

“It’s not as simple as having a zero tolerance policy. You may have a sales team, for example, that takes out customers and has a drink or two, and technically that’s a breach of the policy. So you want to have a very clear policy that says if an employee is using something that could impair their ability to do the job, they need to report that to the company,” Rudner says.

No one is really sure why marijuana was illegal in the first place

Why marijuana is illegal in Canada is something of a mystery. When Mackenzie King’s Liberal government introduced an Act to Prohibit the Improper Use of Opium and other Drugs, in 1923, Canada became one of the first countries to make smoking pot illegal. The odd thing is that very few people smoked it in Canada at the time. There were, in fact, no references to marijuana in the Toronto Star or the Globe and Mail in 1923.

So why was this decision made?

Many have pointed to a 1922 book called The Black Candle by Emily F. Murphy, an activist and jurist who wrote for Maclean’s magazine. Murphy was also, for lack of a better term, crazy. She believed that Africans, Arabs, Chinese, Greeks, and Mexicans, among other immigrant groups, had formed something called The Ring, which aimed to corrupt the purity of the white race by flooding the streets with drugs.

The best-selling Black Candle featured a seven-page chapter called “Marahuana – A New Menace,” which quoted Charles A. Jones, Los Angeles’ chief of police. Jones claimed that smokers lose all moral responsibility, becoming raving maniacs who are “liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty … they are dispossessed of their natural and normal willpower and their mentality is that of idiots.”

There is no solid evidence that this book lead to the illegality of marijuana, but given its popularity, it likely helped create a negative stigma for weed and its users – one that still persists today.

“Most employers have people right now who are using medication that could cause them to be impaired, and they don’t think twice about it. But as soon as they hear the term marijuana, they think, there’s no way I’m going to let my employees come to work and get high,” Rudner says.

“With time, these views will change. Employers will understand that marijuana is an accepted form of medication, and if it’s legal like alcohol, they’ll adapt to that reality … they’ll have no choice.”

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