Will the legalization of recreational marijuana cause difficulties for employers?
May 10, 2016
The short answer is -- probably not. There are two comparisons, which can be made; smoking tobacco and drinking alcohol. Tobacco is a legal product. As such, if it werent for regulations governing its purchase and use, it could be used anywhere. However, due to regulations, most workplaces are smoke-free zones. Employers could impose the same limitations on smoking marijuana. The exception is the use of medical marijuana by an employee, which would need to be accommodated by an employer. Also, employers could impose discipline on individuals who spent too much time smoking marijuana recreationally at the expense of doing the work they are paid to do, as is the case for taking excessive and lengthy smoking breaks.
Drinking alcohol is somewhat more complicated. It is a legal product. Except under certain very limited situations banning its consumption off premises or introducing random testing to determine its usage would not be allowed. The courts have consistently held that random testing is unacceptable as it provides an indication of usage, but it doesnt indicate the level of impairment at the time of the test. There are exceptions in very safety sensitive industries where consumption would create a safety hazard for the employee, colleagues or the public. Also, alcoholism is a medically accepted condition, which would be protected under human rights legislation. Marijuana usage, even if excessive, is not a medically recognized addiction. Therefore, unless an addiction could be proven in a particular case, the protections under human rights law would be unlikely to apply.
The mere fact that it is still a criminal offense to deal, possess or smoke marijuana allows an employer to terminate an employee for cause if the employer can establish that the employee did use or possess marijuana and that the employees use or possession would cause a serious adverse impact on the company's reputation. When marijuana is legalized the option of dismissal for cause, except in limited and specific circumstances, will be severely curtailed if not eliminated entirely. It will be similar to the social consumption of alcohol.
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Marjorie Wallens, MJW Communications
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