Marijuana and employment – Can employees smoke up at work?

Marijuana and Employment – Can Employees Smoke During Work?

Starting October 17th, 2018, cannabis will be legal in Manitoba and Canada. What will this mean for employers? Will employees be able to take marijuana breaks like cigarette smokers? Will employees be able to smoke a joint during their lunch hour? The immediate reaction seems obvious. Most would probably think that employees should not attend the workplace high. We don’t tolerate drunk employees, after all.

But when you start thinking about it, we don’t prohibit employees from having a glass of wine or a beer over lunch either. In fact, many employers (myself included) celebrate certain events at restaurants with staff. We (occasionally) have a bottle of wine. If we allow employees to have alcohol at lunch, can we prohibit them from smoking a joint?

Clear-Cut Cases

Let’s start with clear-cut cases. If an employee operates dangerous equipment, an employer must prohibit the consumption of cannabis and alcohol. These are safety issues, and an employer must never compromise on safety.

Employers may also prohibit employees from smoking recreational cannabis during working hours in the same way that employers prohibit alcohol consumption while at work. No one drinks wine or beer in their cubicle or on their coffee breaks.

Employers should, however, be careful about terminating or disciplining employees who have addiction problems. In Manitoba, under the Human Rights Code, employers must accommodate disabilities. Alcohol and drug dependencies are considered disabilities. While you can prohibit an intoxicated employee from operating dangerous equipment or consuming during working hours, you will likely have to make efforts to accommodate the employee while attempting to overcome their addiction.

More Difficult Cases

In a recent decision, University of Windsor v Canadian Union of Public Employees, Local1001, 2017 CanLII 9594 (ON LA), an arbitrator concluded that the University was justified in terminating two custodians who consumed cannabis during working hours.

While the employees worked the night shift, they smoked marijuana in the parking lot. The campus police caught them and reported them to their supervisors, who placed them on leave pending the investigation. Eventually, the University terminated their employment. As the employees were members of a union, the union grieved their termination.

The employer justified its decision by arguing that due to the unsupervised nature and safety-sensitive environment of their employment, the employer could no longer trust the employees. In the end, the arbitrator agreed the unsupervised nature of the employment required a significant level of trust (but did not comment on the safety-sensitive nature of the employment. Counsel for the union argued against this). Trust is fundamental to the employer/employee relationship. The employer’s decision to terminate was upheld.

Take-Aways

According to this decision, employers are justified in terminating employees who either consume at work or arrive intoxicated. However, this decision was made while cannabis was still a restricted and illegal drug. Once it becomes legal, will arbitrators begin to soften their stance?

I’m not entirely sure I would advise a client to terminate outright someone who consumes recreational cannabis before attending work or during the employee’s lunch hour unless the fact scenario falls into one of the clear-cut cases discussed above.

The arbitrator did not discuss the level of intoxication or whether the employees could complete their duties. If the employees were stopped by the campus police drinking a beer, would the result have been the same?

Unfortunately, because these issues were not addressed, I believe that eventually, once cannabis has become legal, these arguments will arise. An employee will inevitably smoke a joint on a smoke break, and an employer will inevitably terminate them. It will take some time before these cases work themselves through our court system. Until they do, the law is undefined. Until the law is defined, employers who terminate employees do so at their own risk.

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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).

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