Marijuana has been legal in Canada for a few days. To the extent employees seem to be coming to work high, employers are having to decide whether these employees should be allowed to stay at work or be sent home. With the legalization of cannabis, employers are going to have to become experts in impairment — especially when it comes to managing safety sensitive work environments.

One question keeps popping up though. With more people getting high, (apparently it has been selling out) many employers have been asking whether they can prohibit employees from smoking pot for a period of time before they come to work or even at all. Eight hours seem to be the magic number when it comes to driving though of course this is a tricky subject because at this point there simply isn’t enough evidence to make a definitive recommendation. There is, in other words, a lot of guessing.

We don’t want our pilots, surgeons or police officers smoking dope before coming to work (though alcohol seems to be permitted with fewer limits). But what about the receptionist? Or the head of IT? Can we realistically dictate what all employees do when they are not at work? Do we really want to head in this direction? Depends who you ask.

Related to this issue is drug testing and whether employers will now have increased rights when it comes to testing employees at work who show up impaired or unable to do their job.

Let’s go back to first principles. Employees have never been able to come to work impaired or unable to perform their job. Employers have always had the right to expect that their employees report into work ready and able to discharge their duties. This is not new.

Further, in managing impairment at work, employers have human rights obligations such as the duty to accommodate addiction or address the use of medical marijuana. But even with medical marijuana no employee can be impaired at work; particularly if that employee is in what is known as a safety-sensitive position. This issue was recently reviewed by the TTC when one of its employees claimed that she wanted to use medical marijuana to manage her chronic pain. The TTC determined that this employee had a safety-sensitive role and that she could not consume marijuana at work to deal with her medical issues.

As a general rule, employers cannot dictate what employees are permitted to do in their personal life. However, with the legalization of marijuana, employers may have to reach in to the lives of employees with high profile positions and safety-sensitive positions. This is new and I suspect will be where the proverbial rubber will hit the road.

Unlike the US, where employers have much broader rights when it comes to drug testing, the law north of the border – generally speaking – is that employers cannot require employees to submit to random drug tests. In order for a drug test to be legally permissible, the employee has be in a safety-sensitive position. Further, the employer needs to have a reason to conduct the test. A reason might be where an employee seems impaired and there is a strong odour.

I think the distinction between safety sensitive versus non safety may become less stark with the legalization of recreational cannabis as employers are likely to see more impairment at work. This is despite the fact that smoking weed at work (unless you are using it for a specific medical reason) is not allowed.

What can we expect?

I suspect there will be employers who are going to have test the waters and deploy drug testing more frequently especially for employees in safety-sensitive jobs. Historically, the courts have been conservative but I think this will change. Employers will need to make sure their policies are up to date. Also workplace training will need to be revised to educate employees about the updated policies, and so managers and supervisors are able to detect impairment. Moreover employers will need to balance competing human rights issues and deal with addiction and substance abuse.