Clearing

the Haze
The Impacts of Marijuana
in the Workplace
Clearing the Haze
The Impacts of Marijuana in the Workplace

Table of
Contents
01 Introduction
04 Expected Increase
04 Impact on the Workplace
05 Included Research
06 Recommendations

02 Safety in the Workplace

08 The Challenge
08 How Will We Know They’re Impaired?
09 Zero Tolerance
10 Per Se Limit
10 What Should Be Done

03 Employers Duty to Accommodate

13 The Challenge
15 What Should Be Done

04 Drug Plans
16 The Challenge
16 What Should Be Done

05 Drug Testing
18 The Challenge
18 What Should Be Done

06 Recommendations
07 Conclusion
08 Endnotes
01 Introduction

3 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 EDICAL CANNABIS, OR MARIJUANA, HAS BEEN EXPECTED INCREASE

M LEGAL IN CANADA SINCE 19991 ; HOWEVER,

THERE HAVE BEEN MULTIPLE CHANGES TO
THE LAWS AND A MARKED INCREASE IN
The proposed Cannabis Act will create a legal framework for
the sale and possession of marijuana for recreational purposes
THE NUMBER OF CANADIANS WHO HAVE REGISTERED in Canada. To date Uruguay is the only other country in the
TO PURCHASE MEDICAL MARIJUANA. ACCORDING TO world to have legalized the possession, cultivation and sale of
HEALTH CANADA DATA, ALMOST 167,000 CANADIANS recreational marijuana on a national level,3 though it is legally
WERE REGISTERED TO PURCHASE CANNABIS IN THE available in several US States.
LAST QUARTER OF 2016/17. THE NUMBER OF REGISTERED
USERS IS UP 32% IN THE LAST QUARTER ALONE AND HAS A major increase in consumption of cannabis for recreational
GROWN TO FIFTEEN HUNDRED TIMES ITS SIZE SINCE THE purposes is expected post-legalization. According to a poll
FIRST DOCUMENTED QUARTER IN JUNE 2014.2 THIS SURGE by Deloitte, currently 22% of the Canadian adult population
IS ALREADY CREATING PROBLEMS FOR EMPLOYERS consumes recreational cannabis on at least an occasional basis.
WHO HAVE TRIED TO MANAGE THE IMPACT ON THEIR A further 17% show some willingness to try it if it were legal
WORKFORCE. EARLIER THIS YEAR, THE GOVERNMENT which is close to 40% of the adult population.4 Additionally,
OF CANADA ANNOUNCED ITS INTENTION TO LEGALIZE spikes in the number of marijuana users in states where
RECREATIONAL MARIJUANA BY JULY 1, 2018. BECAUSE OF recreational use is legal indicate a likelihood that the number of
THIS CHANGE, MANY EXPERTS EXPECT A SIMILAR RISING Canadians using marijuana will increase after full legalization.5
TREND IN RECREATIONAL USERS WHEN THE PROPOSED
CANNABIS ACT COMES INTO EFFECT. THESE CHANGES WILL
EXPONENTIALLY INCREASE THE POTENTIAL ISSUES FOR IMPACT ON THE WORKPLACE
EMPLOYERS, AND NEED TO BE FULLY UNDERSTOOD.
While adult cannabis use is not a new issue, employers are
Total Number of Canadians Registered concerned about how the legalization and subsequent increased
for Medical Marijuana Use use will affect the workplace.

180000
A survey completed by over 650 HRPA members between June
160000 1, 2017 and June 9, 2017 found that 45% of respondents do not
believe that their current workplace policies address potential
140000 new issues that may arise with the legalization of marijuana.
Respondents’ concerns ranged from attendance and decreased
120000
work performance to increased insurance claims.
100000
Given the significance of this issue to employers, the HRPA
80000 has developed this white paper to help employers and the
government understand the challenges ahead. This paper
60000
explores four key areas:
40000
1. Safety in the workplace
20000 2. Employers’ duty to accommodate
3. Drug plans
0
14 Q1 14 Q2 14 Q3 14 Q4 15 Q1 15 Q2 15 Q3 15 Q4 16 Q1 16 Q2 16 Q3 16 Q4
4. Drug testing
SOURCE: HTTPS://WWW.CANADA.CA/EN/HEALTH-CANADA/SERVICES/DRUGS-HEALTH-
PRODUCTS/MEDICAL-USE-MARIJUANA/LICENSED-PRODUCERS/MARKET-DATA.HTML

4 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Introduction

INCLUDED RESEARCH

While international examples are helpful informing what could

happen after full legalization, there is no perfect comparison.
As mentioned, Uruguay is the first country to fully legalize the
cultivation, possession and sale of cannabis, but the law will
not come into effect until July of 2017.6
ACCESS TO CANNABIS FOR MEDICAL
There are eight U.S. states where marijuana has been PURPOSES REGULATIONS
legalized: Washington, Oregon, California, Nevada, Alaska,
Colorado, Massachusetts and Maine;7 however, these do not These regulations
• Allow for Canadians with prescriptions to access
offer exact comparisons for two major reasons. First, the
quality-controlled cannabis from Health Canada or
legalization of cannabis is currently being enacted on a state- another licensed produces; or,
by-state basis while federal laws continue to classify the drug • Produce a small amount for themselves; or,
as an illegal narcotic. Second, employers in states such as • Designate an individual to produce it for them.
Oregon do not have the same duty to accommodate as courts
have determined Canadian employers have. Currently regulations do not allow for purchase of
medical cannabis from storefront locations.

This paper will therefore draw on international examples but Regardless of how they obtain the medical
will also use data from an exclusive HRPA member survey marijuana, licensed users may only possess the lesser
to identify employers’ concerns and potential issues for of 150 grams or a 30-day supply.
policymakers to consider. *SOURCE: HTTPS://WWW.CANADA.CA/EN/HEALTH-CANADA/SERVICES/PUBLICATIONS/DRUGS-
HEALTH-PRODUCTS/UNDERSTANDING-NEW- ACCESS-TO- CANNABIS-FOR- MEDICAL-PURPOSES-REG-
ULATIONS.HTML

Uruguay is the first THE CANNABIS ACT

country to fully legalize the The proposed Cannabis Act will:
cultivation, possession and • Create a legal framework for the sale and possession
of cannabis in Canada;
sale of cannabis, but the law • Permit Canadians without prescriptions to purchase
small amounts of cannabis from authorized
will not come into effect retailers or to order online from federally licensed
producers in provinces where retailers have yet to be
until July of 2017. authorized;
• Allow users to share their marijuana with other
adults;
• Permit the cultivation of up to four plants at home.

Restrictions
• Prohibit the sale of cannabis to anyone under the
age of eighteen, although provinces have the option
to set the minimum age higher;
• Create new criminal offences for those who give or
sell cannabis to youth.

Regulations for marketing and taxation have not yet

been introduced, although strict marketing restrictions
are expected.

5 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Introduction

TOP 5 CONCERNS OF IMPACT ON WORKFORCE

SOURCE: HRPA JUNE 2017 MEMBER SURVEY

1. EMPLOYEES OPERATING 2. DISCIPLINARY PROCEDURES

MOTOR VEHICLES

3. DECREASED WORK
PERFORMANCE

4. EMPLOYEES USING HEAVY 5. ATTENDANCE

MACHINERY

6 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

02 Safety in the
Workplace

7 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 THE CHALLENGE HOW WILL WE KNOW THEY’RE IMPAIRED?

The foremost concern for employers preparing for full Employers will need to set specific policies regarding cannabis
legalization of cannabis relates to workplace safety. use in the workplace, but how do they know when an
employee is too impaired to work safely? Is there a blood test
Canadian employers are required by law to ensure safety in they can perform? How much cannabis is too much?
the workplace, and there are several new challenges being
introduced with the legalization of cannabis.
Do you believe your existing policy for
Marijuana is already the most commonly encountered
marijuana adequately covers off on
substance in workplace drug testing8 , but its use is expected
any potential new workplace issues
to grow exponentially after full legalization.9 There is
that may arise with the legalization
widespread concern among employers that increased use
of recreational marijuana?
of cannabis, led by social normalization, will result in higher
incidences of impairment in the workplace. Many employers
are expecting the occurrence of workplace accidents to
increase, especially in safety-sensitive industries. Indeed, over
half of HRPA member respondents indicated that they were
concerned with employees operating motorized vehicles.

54% 46%
Experts argue that because the cognitive requirements for
driving and other safety-sensitive tasks overlap, the studies
on cannabis-impaired driving can be translated into the
context of the workplace. A joint guidance statement from YES NO
the American Association of Occupational Health Nurses and
the American College of Professionals and Employers explains
it well. It states, “Because much of the knowledge regarding
impairment and accident risk in the workplace due to alcohol
intoxication has been gleaned from studies of driving
impairment and crash risk, these same types of studies can be
used to assess impairment in the workplace from cannabis.”10

8 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Safety in the Workplace

ZERO-TOLERANCE

According to the HRPA survey, only 11% of respondent A zero-tolerance cannabis policy is problematic in the
companies have a policy in place to address medical workplace due to employers’ duty to accommodate. A zero-
marijuana, and 45.9% do not believe their existing policy tolerance policy could cause discrimination against employees
adequately covers any potential workplace issues that may who use cannabis to treat or relieve the symptoms of a
arise with the legalization of recreational marijuana. disability.14 To confidently enact a zero-tolerance policy,
employers would have to be prepared to establish that
Unlike alcohol, there is no current consensus on safe limits for sobriety is a bonafide occupational requirement (BFOR) if
consuming cannabis. The effects of cannabis on individuals anyone brought a human rights case against them. Many
vary widely depending on the THC content (the active argue that safety-sensitive workplaces have BFOR and should
ingredient in marijuana), frequency of use, and other factors therefore allow for zero-tolerance policies.
such as combined use with alcohol or other drugs.11 Typical
effects described by cannabis users are relaxation, euphoria, Enform, a safety association for the Alberta oil and gas
increased appetite, overall happiness and heightened senses. industries, was one group that submitted recommendations
Some observable effects are lack of concentration, impaired to the federal task force on cannabis legalization. In
learning and memory, changes to thought formation and their submission, they detailed the risks associated with
expression, and drowsiness.12 cannabis use and the implications for safety-sensitive work
environments. They recommended that:
Again, it is helpful to use the context of impaired driving to
inform approaches to drug impairment in the workplace. In At minimum, there must be an express prohibition on the
places where marijuana is legal for medical or recreational use of marijuana in safety-sensitive workplaces. There
use, different jurisdictions have different ways of dealing must also be an express prohibition on using marijuana
with drug-impaired driving. The AAA Foundation for Safety in close temporal proximity to attending work on a
goes over these approaches in their report, “An Evaluation of safety-sensitive worksite. An express prohibition on the
Data from Drivers Arrested for Driving Under the Influence in possession, storage, use or sale of marijuana on safety-
Relation to Per se Limits for Cannabis.”13 The first approach sensitive workplaces or facilities associated with those
is a “zero-tolerance” policy, under which no level of cannabis workplaces must also be included.15
consumption is considered safe before driving. The second
major approach is to establish a “per se limit” on acceptable Thus while zero-tolerance policies are not advisable in every
cannabis levels in the blood, similar to Blood Alcohol Content workplace, there may be a place for them in the safety-
guidelines. There are advantages to both approaches, but sensitive sector. The duty to accommodate medical cannabis
neither provides a standard definition for what constitutes will be discussed in the next section of this paper.
impairment.

9 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Safety in the Workplace

PER SE LIMIT WHAT SHOULD BE DONE

Establishing a per se limit for THC is considered by many to be Recommendation 1: The government should set a clear
the most reliable way of identifying impairment, but there is legal definition of “impairment” and the grounds under
still no consensus on the appropriate limit. Studies also show which an employee can be tested in relation to cannabis use.
that there does not seem to be a pattern in the amount of Special considerations for safety-sensitive industries may be
THC in a person’s system when they have determined to be necessary.
impaired as people seem to be affected differently.16
Recommendation 2: As with medical marijuana, recreational
cannabis should be clearly labeled with the THC and other
According to the HRPA survey, relevant content to allow employees to guide their choices and
only 11% of respondent provide an indicator on impairment levels.

companies have a policy in place Recommendation 3: Provincial governments should

to address medical marijuana, coordinate recreational marijuana legislation and regulations
as much as possible to ensure that employers with a national
and 45.9% do not believe their workforce can easily adhere to the policies and communicate
existing policy adequately these rules to their employees.
covers any potential workplace Recommendation 4: Employers should regularly review
issues that may arise with the ongoing legislation and legal developments and update their
legalization of recreational policies accordingly.

marijuana. For the time being, employers can update other health and
wellness policies based on what they already know. First, a
prescription for cannabis does not entitle the employee to
smoke in the workplace.17 Smoke-free laws apply to smoking
marijuana in the same way they do to smoking regular
cigarettes. Employers should update any smoking policies to
make note of this. Second, employers may have to deal with
scent-related complaints about employees who use cannabis.
Employers should examine their current scent policies to
ensure these complaints are covered for cannabis that is
smoked or applied topically.

10 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

03 Employers’ Duty
to Accommodate

11 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 THE CHALLENGE

Employers preparing for increased normalization of cannabis A common mistake that some employers make in accommodat-
use must better understand how it will affect their duty to ing medical marijuana is assuming using it will impair the em-
accommodate. In Ontario, employers are required by law to ployee’s ability to do the essential duties of their job. Because
accommodate the disabilities of employees up until the point of cannabis can be taken in various forms and doses, the level
undue hardship. This may include accommodating an employ- of impairment can fall across a broad spectrum. Employment
ee’s use of prescribed cannabis, as well as accommodating lawyer Parisa Nikfarjam cautions against making accommo-
unseen disabilities such as substance abuse and addiction.18 dation decisions based on a perceived disability. She explains,

Despite medical marijuana being a prescribed treatment since “Employers should be cautioned from making stereotypical
1999 in Canada, the HRPA’s survey identified that very few assumptions about the abilities of an employee who has
HR Professionals have actual experience dealing with duty to been prescribed medical marijuana. While some assumptions
accommodate situations related to cannabis use. The survey may be valid where safety is a concern (such as driving), it
found that only 11% of respondents have had to accommodate may be improper to, for example, diminish an employee’s du-
an employee that requires medical marijuana. ties based solely on assumed impairment.” Instead, when an
employee requests accommodation, they should inquire as to
whether the employee will be able to perform the essential
duties of the job and what kinds of accommodation may be
necessary.19

Have you had to

accomodate an employee
that requires medical
marijuana?

11% 89%
YES NO

12 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Employer’s Duty to Accommodate

This does not, however, mean that an employee is entitled to

choose the exact form of accommodation. Human rights case
“A common mistake that
law confirms that the role of the employer is to accommodate some employers make in
the employee’s needs, not their preference.20 Where more
than one form of accommodation is possible, the employer accommodating medical
has the right to choose the less expensive or disruptive option.
Thus, an employer may request that the employee consume marijuana is assuming using
medical marijuana privately, even away from designated
smoking areas, as found in the example of Gibson v. Ridgeview
it will impair the employee’s
Restaurant Limited. In this case, the Human Rights Tribunal ability to do the essential
of Ontario found no discrimination against the complainant
who was dismissed for going against the employer’s request duties of their job.”
that he not smoke marijuana within six feet of the restau-
rant entrance.21 –PARISA NIKFARJAM | Employment Lawyer
In addition to accommodating employees with prescriptions
for medical marijuana, employers may soon be dealing with
employees whose performance is affected by recreational
cannabis use. If there are significant changes in an employee’s
performance because of substance abuse, part of the progres-
sive discipline process may involve asking whether the em-
ployee needs any accommodation. The Ontario Human Rights
Commission provides an example in which an employer does
not know that an employee has a drug addiction but notices
performance difficulties and signs of distress. If the employer
disciplines or dismisses the employee without using progres-
sive discipline or attempting to accommodate, they may be
found to have discriminated against the employee on the
basis of a disability.22 While employers should not go looking
for substance abuse problems, they should ensure that their
progressive discipline policies cover situations like these.

13 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Employer’s Duty to Accommodate

WHAT SHOULD BE DONE

Recommendation 5: The government should keep two

separate regulatory streams (medical and recreational) to
allow employers to determine their duty to accommodate.
A separate medical stream allows employers to more easily
verify when they have a duty for medical purposes.

Recommendation 6: The government should give employers

two sets of guidelines for marijuana use—one for medical
marijuana and one for recreational cannabis. Employers are
requesting guidance from government on how to handle
marijuana in the workplace. Progressive discipline policies
should indicate when it is appropriate to ask if the employee
requires accommodation.

Recommendation 7: Employers should enact a clear drug

policy that includes the definition of “impairment” in a way
that captures medical marijuana use and when/where it is
acceptable. Policies on drug use must define what it means
to be impaired and provide details on how the policy applies
to medical cannabis. Any prescription drug policies should
be enforced in a uniform manner to ensure that medical
marijuana is treated equally with other prescriptions.

14 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

04
Drug Plans

15 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 THE CHALLENGE

As the number of Canadians with marijuana prescriptions There are two regulatory roadblocks cited by employers
continues to grow, pressure is mounting for benefits that stand in the way of coverage. These are that medical
programs to cover medical cannabis. Currently most benefits marijuana is not an approved drug under the Food and
programs do not offer this coverage, and indeed according Drugs Act, and that it does not yet have an assigned Drug
to the HRPA’s survey, almost no employers (only 4%) offer Identification Number (DIN).24
coverage for medical marijuana.
In the case of Skinner v. Board of Trustees, the Tribunal did not
Despite the low level of current extended medical benefit consider these to be sufficient evidence of undue hardship, as
coverage of marijuana, recent legal developments call the benefit program had not set them as specific requirements
into question whether this will become a larger issue in for coverage.25 The Canada Revenue Agency also took steps to
the future. In Skinner v. Board of Trustees of the Canadian simplify marijuana coverage in 2015 when they added medical
Elevator Industry Welfare Trust Fund, the Nova Scotia cannabis to the list of medically exempt tax credits, which
Human Rights Tribunal found that a board of trustees had means it is payable through employer-provided healthcare
discriminated against a disabled employee for denying his spending accounts.26 So while it would be helpful for Health
claim for medical marijuana. This case is not considered Canada to remove barriers to medical marijuana coverage,
precedent for employers in the province to be required to employers may not need to wait to begin covering these claims.
cover all medical marijuana claims, but it does put the onus
on them to either justify the discrimination or prove undue
hardship in denying such requests for coverage.23 With such WHAT SHOULD BE DONE
rapid changes happening in the realm of medical marijuana,
why aren’t more organizations preparing to address requests Recommendation 8: Employers should explore the benefits
from their own employees? The United States offers of medical marijuana coverage. HR professionals should liaise
little guidance in this area as marijuana is still a schedule I with insurance companies to evaluate what restrictions might
substance under the federal Controlled Substances Act. In currently be in place and to gauge the provider’s flexibility on
addition, to date, no court cases have set the precedence individual claims.
requiring coverage of medical marijuana claims.
Recommendation 9: Employers should be prepared to answer
questions from employees on medical cannabis coverage.
Whether or not their organization decides to cover medical
POTENTIAL COST SAVINGS marijuana costs, employers should educate themselves on
FOR EMPLOYERS the subject in order to answer questions they will likely hear
from employees.
The main goal of benefit plans should always be to
support the employee’s quality of life, but some Has your workplace done any work
argue that medical marijuana coverage could actually to get medical marijuana covered within
save them money. your existing benefits plan?

The cost of medical marijuana can in some cases

be far less compared to conventional medications.
For example, Benefits Canada points out that the
anti-nausea drug Zofran (used for chemotherapy 78% 20% 2%
patients) costs about $40 per pill, while a marijuana
joint costs about $2 or $3.
NO, AND WE’RE NOT NOT YET, BUT WE’RE YES
PLANNING TO PLANNING TO

*SOURCE:HTTP://WWW.BENEFITSCANADA.COM/BENEFITS/OTHER/MEDICAL-QUESTIONS- REGULATO-
RY-ISSUES-CREATE-CONFUSING-LANDSCAPE-FOR-MEDICAL-POT-COVERAGE-85555
*SOURCE:HTTP://WWW.BENEFITSCANADA.COM/BENEFITS/OTHER/MEDICAL-QUESTIONS-
REGULATORY-ISSUES-CREATE-CONFUSING-LANDSCAPE-FOR-MEDICAL-POT-COVERAGE-85555

16 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

05
Drug Testing

17 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 THE CHALLENGE

The issue of drug testing in Canadian workplaces can Before implementing a marijuana testing policy in the
be controversial, but nonetheless employers maintain a workplace, employers should be able to establish that the
variety of rights to test for impairment. According to the motive is based in a legitimate concern for safety. In their
HRPA survey, 9.8% of respondent organizations perform latest Policy on Drug and Alcohol Testing, the Ontario Human
some type of drug testing on their employees. Of those Rights Commission states, “The primary reason for conducting
respondents, 75.8% believe the legalization of recreational drug and alcohol testing should be to measure impairment,
marijuana will have either a great or moderate impact on as opposed to deterring drug or alcohol use or monitoring
their drug testing policy. moral values among employees.”30 There are three scenarios in
which an employer might test someone for drug impairment:
If the use of cannabis for both medical and recreational as a pre-employment screening method, reasonable grounds
purposes does indeed rise as expected, it would seem logical or post-incident testing, or random drug testing in safety-
for more employers to implement drug testing, especially for sensitive workplaces.31 Without a reliable method for
safety-sensitive positions. The difficulty, however, is that measuring impairment, employers may have issues making
current drug testing cannot sufficiently determine the extent disciplinary decisions in these situations.
of cannabis impairment. Until a reliable form of impairment
testing is available, employers will have to continuously revisit
their drug testing policies. Before medical or recreational WHAT SHOULD BE DONE
marijuana were legal, a urine test showing the presence of THC
would have been sufficient to trigger disciplinary procedures. Recommendation 10: Given the rapid advancements in
This is no longer the case. In order to prove the employee testing technology, employers should often revisit their
was in violation of the workplace drug policy, the employer drug testing policies. Until a clear method for establishing
will have to prove the employee was impaired. The urine impairment is available, employers will have to keep track of
analysis test commonly used by employers looks for a THC the latest updates in testing technology and case law.
metabolite that can be present in a person’s system for weeks
after use.27 The ACOEM says that detecting this metabolite
is about as useful to employers as detecting the “80-hour”
ethanol metabolite (ethyl glucuronide) in the urine of a social
drinker; neither indicate acute impairment.28 Employers need
more information on detecting impairment, but the available
studies are somewhat outdated. Many of the studies on
cannabis impairment were conducted when the concentration
of THC in marijuana was much lower than it is today.29 Studies
on blood and saliva tests show some promise, but it is clear
that research on testing methods is desperately needed.

18 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

06
Recommendations

19 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 01 07
The government should set a clear legal Employers should enact a clear drug policy that
definition of “impairment” and the includes the definition of “impairment” in a way
grounds under which an employee can be that captures medical marijuana use and when/
tested in relation to cannabis use. Special where it is acceptable. Policies on drug use must
considerations for safety-sensitive industries define what it means to be impaired and provide
may be necessary. details on how the policy applies to medical
cannabis. Any prescription drug policies should
be enforced in a uniform manner to ensure that

02
As with medical marijuana, recreational medical marijuana is treated equally with other
cannabis should be clearly labeled with the prescriptions.
THC and other relevant content to allow
employees to guide their choices and provide

08
guidance on impairment levels. Employers should explore the benefits of
medical marijuana coverage. HR professionals
should liaise with insurance companies to

03
Provincial governments should coordinate evaluate what restrictions might currently be in
recreational marijuana legislation and place and to gauge the provider’s flexibility on
regulations as much as possible to ensure that individual claims.
employers with a national workforce can easily
adhere to the policies and communicate these
rules to their employees.
09 Employers should be prepared to answer
questions from employees on medical cannabis
coverage. Whether or not their organization

04
Employers should regularly review ongoing decides to cover medical marijuana costs,
legislation and legal developments and update employers should educate themselves on the
their policies accordingly. subject in order to answer answer questions they
will likely get from employees.

05
The government should keep two separate
regulatory streams (medical and recreational)
to help employers to determine their duty to
accommodate. A separate medical stream
10 Given the rapid advancements in testing
technology, employers should often revisit their
drug testing policies. Until a clear method for
allows employers to more easily verify when establishing impairment is available, employers
they have a duty for medical purposes. will have to keep track of the latest updates in
testing technology and case law.

06
The government should give employers two sets
of sample guidelines for marijuana use—one
for medical marijuana and one for recreational
cannabis. Employers are requesting guidance
from government on how to handle marijuana
in the workplace. Progressive discipline policies
should indicate when it is appropriate to ask if
the employee requires accommodation.

20 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

07
Conclusion

21 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 S THE DATE FOR LEGALIZATION OF

A RECREATIONAL MARIJUANA IN CANADA

APPROACHES AND THE NUMBER OF
REGISTERED MEDICAL MARIJUANA USERS
CONTINUES A STEEP TREND UPWARDS, EMPLOYERS
WILL NEED TO BE PREPARED FOR THE NEW REGULATORY
LANDSCAPE. IT IS CRUCIAL THAT GOVERNMENTS AT ALL
LEVELS PROVIDE EMPLOYERS AND EMPLOYEES WITH
SPECIFIC GUIDANCE ON HOW TO OPERATE WITHIN THIS
NEW ENVIRONMENT.

Research shows that employers are looking to government

to provide them with information on issues ranging from
how to determine impairment to guidance related to
safety-sensitive workplaces. Governments must consider
these important issues and do what they can to ensure that
employers and employees have the information they require.
Wherever possible, all provinces should coordinate with each
other in the development of new policies and regulations
related to marijuana use.

In addition, because marijuana is both a recreational and

a medical drug the government must keep two separate
product streams and require a prescription for medical use.
This will allow employers to continue to determine when
they have a duty to accommodate an employee for a medical
condition and not accommodate recreational use.

By implementing the ten recommendations laid out in this

paper, governments and employers can help smooth the
transition to a country where recreational marijuana is legal.
These steps will help reduce confusion, increase transparency
and ensure safe and healthy work environments.

22 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

08
Endnotes
 01 P1 Health Canada. August 2016. Understanding the New Access to 11 Philips, Jennan A. et al. 2015. American College of Occupational and
Cannabis for Medical Purposes Regulations. Accessed at: Environmental Medicine. Marijuana in the Workplace: Guidance for
https://www.canada.ca/en/health-canada/services/publications/ Occupational Health Professionals and Employers. Accessed at:
drugs- health-products/understanding- new-access- to-cannabis- https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_
for-medical- purposes-regulations.html And_Position_Statements/Guidelines/Guidelines/Marijuana%20
JointGuidance%202015.pdf
02 Health Canada. June 2017. Market Data. Accessed at: https://
www.canada.ca/en/health-canada/services/drugs- health-products/ 12 Philips, Jennan A. et al. 2015. American College of Occupational and
medical- use-marijuana/licensed-producers/market- data.html Environmental Medicine. Marijuana in the Workplace: Guidance for
Occupational Health Professionals and Employers. Accessed at:
03 Uki Goni. May 27, 2017. Uruguay, the first country where you can https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_
smoke marijuana wherever you like. The Guardian. Accessed at: And_Position_Statements/Guidelines/Guidelines/Marijuana%20
JointGuidance%202015.pdf
04 Deloitte. 2017. Recreational Marijuana Insights and Opportunities.
Accessed at: https://www2.deloitte.com/content/dam/Deloitte/ 13 Logan, Barry. Kacinko, Sherry. Beirness, Dougleas. (May 2016).
ca/Documents/Analytics/ca-en- analytics-DELOITTE%20 An Evaluation of Data from Drivers Arrested for Driving Under the
Recreational%20Marijuana%20POV%20-%20ENGLISH%20FINAL_ Influence in Relation to Per Se Limits for Cannanis. AAA Foundation
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05 Beeby, Dean. March 15, 2017. Employers want Ottawa to deal with
marijuana-smoking workers. CBC. Accessed at: http://www.cbc.ca/ 14 MacIsacc, Allison. April 2016. Accommodating the Use of Medical
news/politics/marijuana-legalization- employers-safety- testing- Marijuana in the Workplace HRProffessionalNow.Ca. Accessed at:
impairment- medical-1.4017539 http://hrprofessionalnow.ca/index.php/legal-words/423-
accommodating-the- use-of- medical-marijuana- in-the- workplace
06 Uki Goni. May 27, 2017. Uruguay, the first country where you can
smoke marijuana wherever you like. The Guardian. Accessed at: 15 Enform. August 29, 2017. Enform’s Submission to the Task Force
https://www.theguardian.com/society/2017/may/27/marijuana- on Marijuana Legalization, Regulation and Restriction. Accessed at:
legalisation- uruguay-seen- half-measure-usershttps://www. http://www.enform.ca/files/EnformLtr-Marijuana_legalization_
theguardian.com/society/2017/may/27/marijuana-legalisation- commission.pdf
uruguay-seen- half-measure- users
16 Logan, Barry. Kacinko, Sherry. Beirness, Dougleas. (May 2016).
07 Governing Data. State Marijuana Laws. March 23, 2017. Accessed An Evaluation of Data from Drivers Arrested for Driving Under the
at: http://www.governing.com/gov-data/state- marijuana-laws- Influence in Relation to Per Se Limits for Cannanis. AAA Foundation
map-medical-recreational.html for Traffic Safety. Accessed at: https://www.aaafoundation.org/
sites/default/files/EvaluationOfDriversInRelationToPerSeReport.pdf
08 Els, Charl. Amin, Aditi. Sebastian Straube. Marijuana and the
Workplace. Volume 7 Number 4. The Canadian Journal of Addiction. 17 MacIsacc, Allison. April 2016. Accommodating the Use of Medical
http://psychiatry.med.ualberta.ca/en/dept%20News/2017/ Marijuana in the Workplace HRProffessionalNow.Ca. Accessed at:
January/~/media/psychiatry/Documents/MJ_in_Workplace_Els_CJA- http://hrprofessionalnow.ca/index.php/legal-words/423-
vol- 7-no- 4-2016- .pdf accommodating-the- use-of- medical-marijuana- in-the- workplace

09 Forum Poll: Majority Approve of legal marijuana. 2016. Accessed 18 MacIsacc, Allison. April 2016. Accommodating the Use of Medical
at: https://www.scribd.com/document/293866860/Forum- Marijuana in the Workplace HRProffessionalNow.Ca. Accessed at:
Research- marijuana-poll-Dec-20 http://hrprofessionalnow.ca/index.php/legal-words/423-
accommodating-the- use-of- medical-marijuana- in-the- workplace
10 Philips, Jennan A. et al. 2015. American College of Occupational and
Environmental Medicine. Marijuana in the Workplace: Guidance for 19 Ontario Human Rights Commission. 2017. Duty to Accommodate.
Occupational Health Professionals and Employers. Accessed at: Policy on ableism and discrimination based on disability. Accessed at:
https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_ http://www.ohrc.on.ca/en/policy-ableism- and-discrimination-
And_Position_Statements/Guidelines/Guidelines/Marijuana%20 based-disability/8- duty-accommodate
JointGuidance%202015.pdf

24 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

 Endnotes

20 Ontario Human Rights Commission. 2017. Duty to Accommodate. 28 Philips, Jennan A. et al. 2015. American College of Occupational
Policy on ableism and discrimination based on disability. Accessed at: and Environmental Medicine. Marijuana in the Workplace: Guidance
http://www.ohrc.on.ca/en/policy-ableism- and-discrimination- for Occupational Health Professionals and Employers. Accessed at:
based-disability/8- duty-accommodatehttp://www.ohrc.on.ca/ https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_
en/policy-ableism- and-discrimination-based- disability/8-duty- And_Position_Statements/Guidelines/Guidelines/Marijuana%20
accommodate JointGuidance%202015.pdf

21 MacIsacc, Allison. April 2016. Accommodating the Use of Medical 29 Philips, Jennan A. et al. 2015. American College of Occupational
Marijuana in the Workplace HRProffessionalNow.Ca. Accessed at: and Environmental Medicine. Marijuana in the Workplace: Guidance
http://hrprofessionalnow.ca/index.php/legal-words/423- for Occupational Health Professionals and Employers. Accessed at:
accommodating-the- use-of- medical-marijuana- in-the- workplace https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_
And_Position_Statements/Guidelines/Guidelines/Marijuana%20
22 Ontario Human Rights Commission. 2017. More about disability- JointGuidance%202015.pdf
related accommodation.. Policy on ableism and discrimination based
on disability. Accessed at: http://www.ohrc.on.ca/en/iv-human- 30 Philips, Jennan A. et al. 2015. American College of Occupational
rights-issues- all-stages- employment/9-more- about-disability- and Environmental Medicine. Marijuana in the Workplace: Guidance
related-accommodation for Occupational Health Professionals and Employers. Accessed at:
https://www.acoem.org/uploadedFiles/Public_Affairs/Policies_
23 https://www.thestar.com/business/2017/03/30/shoppers- And_Position_Statements/Guidelines/Guidelines/Marijuana%20
loblaw- employees-covered- for-medical- marijuana.html JointGuidance%202015.pdf

24 Deardon, Kate. March 16, 2016. Disabled worker wins 31 Ontario Human Rights Commission. April 2016. Policy on drug
discrimination claim after being denied coverage for medical and alcohol testing. Accessed at: http://www.ohrc.on.ca/sites/
marijuana. Canadian Employment Law Today. Accessed at: http:// default/files/Policy%20on%20drug%20and%20alcohol%20testing_
www.employmentlawtoday.com/article/32868-disabled- worker- revised_2016_accessible_1.pdf
wins- discrimination-claim- after-being- denied-coverage-for-
medical- marijuana/ 32 Ontario Human Rights Commission. April 2016. Policy on drug
and alcohol testing. Accessed at: http://www.ohrc.on.ca/sites/
25 Deardon, Kate. March 16, 2016. Disabled worker wins default/files/Policy%20on%20drug%20and%20alcohol%20testing_
discrimination claim after being denied coverage for medical revised_2016_accessible_1.pdf
marijuana. Canadian Employment Law Today. Accessed at: http://
www.employmentlawtoday.com/article/32868-disabled- worker-
wins- discrimination-claim- after-being- denied-coverage-for-
medical- marijuana/

26 Deardon, Kate. March 16, 2016. Disabled worker wins

discrimination claim after being denied coverage for medical
marijuana. Canadian Employment Law Today. Accessed at: http://
www.employmentlawtoday.com/article/32868-disabled- worker-
wins- discrimination-claim- after-being- denied-coverage-for-
medical- marijuana/

27 Paterson, Jennifer. August 9, 2016. Medical questions, regulations

create confusion for medical pot coverage. Benefits Canada. Accessed
at: http://www.benefitscanada.com/benefits/other/medical-
questions- regulatory-issues- create-confusing- landscape-for-
medical-pot- coverage-85555

25 CLE ARING T HE HA ZE: T HE IMPAC T S OF M ARIJUANA IN T HE WORKPL ACE

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