Cannabis at work: What can employers do?

By now, you are probably tired of hearing and reading about cannabis or cannabis at work. I don’t blame you. I’m tired of it too. Enough already. Let’s move on to other things.

However, despite its presence in the news, the legalization of cannabis will significantly impact our lives. As with any change in the law, we must get ready to deal with the consequences flowing from those changes.

While people can’t consume marijuana in public or their car, they can consume it at home. Alcohol consumption is no different. You can’t consume alcohol in public or your vehicle. But at home, you are free to consume as much as you want. If someone wants to drink a tequila sunrise at breakfast or smoke a joint, they are free to do so.

Freedom to Establish Policies

Employers have long forbidden employees from attending work drunk. They can apply the same policy to cannabis at work. Employers are entitled to establish policies governing alcohol and cannabis at work and whether employees can attend work intoxicated. I would recommend all of my business clients who employ others to establish policies on this issue.

Employees who fail to respect the policy could be subject to progressive discipline – which should also be outlined in your policies. As long as an employer establishes reasonable policies and consistently and uniformly follows them, they could terminate an employee who consistently attends the workplace intoxicated – high or otherwise.

Duty to Accommodate

This sounds easier than it is. Employment law can be tricky. I’ve written about the duty to accommodate employees with addictions. If your employee claims he is addicted to marijuana, you would have a duty to mitigate, and the employee could no longer be subject to your progressive discipline policy. If you terminate an employee who claims to be addicted, you could be subject to an investigation under Manitoba’s Human Rights Code.

So, legally speaking, an employer can establish policies about the consumption of cannabis at work. That should cover it.

Policies Applied Evenly

But not so fast! Terminated employees may file a statement of claim in court claiming that they were terminated without cause even if the employer claims cause. Courts can rule an employer who claims cause was not justified in doing so. Courts have developed several principles in deciding these cases over the years. One of these principles is that the punishment (termination, in this case) must be proportional to the offensive behaviour.

For example, if you fire someone because he came back late from lunch, a court will likely find your actions unjustified. If the employee is habitually late and there is a policy requiring employees to work at specific times,  you may be justified in terminating that person. However, you must show that the employee was given opportunities to improve the offending behaviour. If you have a progressive discipline policy, you must show that you followed the policy.

Also, courts will consider whether you consistently and uniformly apply your policies. So if you apply your policy to the letter to one employee but do not to others, a court could find that the employer’s message is unclear and the employer was not justified in terminating the employee.

Possible scenario

Let’s imagine the following scenario: An employer establishes a policy that an employee cannot consume alcohol or cannabis at work and cannot attend work under the influence of either. However, employees regularly go for lunch on Fridays as a group, and several of them consume either a beer or glass of wine. Most of the employees do not consume marijuana. However, one does. One employee consumes marijuana recreationally but does not get along with the others. Instead of going for lunch with the group, that employee goes home and smokes a small joint. The employee returns to work slightly high.

Suppose the employer disciplines the employee who attended work slightly high but fails to discipline the employees who consumed alcohol. In that case, the disciplined employee could make a claim that the employer is not applying the policies equally and therefore was unjustly disciplined.

Conclusion

At this point, we don’t know how a court would rule. But conceivably, a judge could accept the argument that the employer mistreated the employee. What is the difference between being slightly intoxicated with alcohol versus cannabis? The employer would undoubtedly argue that the effects of one cannot be compared to the other’s effects and that the consumption of cannabis is different from the consumption of alcohol. This argument is also persuasive, as long as an employer can show why these are different. Relying on the stigma associated with the consumption of cannabis may be successful in the short term, but the longer cannabis is legal, the less potent that argument.

‍

Disclaimer – Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

‍