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 have a significant impact on 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 in their car, they can consume at home. Alcohol consumption is no different. You can’t consume alcohol in public or in 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, she is free to do so.
Freedom to establish policies
Employers have long forbidden employees from attending work drunk. They can apply that same policy to cannabis at work. Employers are entitled to establish policies governing the use of alcohol and cannabis at work and whether employees can attend work intoxicated. In fact, 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 established in your policies. As long as an employer establishes reasonable policies, and follows them consistently and uniformly, they could terminate an employee who consistently attends the work place 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 the Human Rights Code of Manitoba.
So, legally speaking, an employer can establish policies about the consumption of cannabis at work. That should cover it….
Policies applied evenly
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 that an employer who claims cause was not justified in doing so. Courts have developed a number of 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 you have a policy stating that employees are to work at specific times, then you may be justified in terminating that person. However, you must be able to show that the employee was given opportunities to improve the offending behaviour. If you have a progressive discipline policy, you must be able to show that you followed that policy and that you followed it.
In addition, 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 therefore the employer was not justified in terminating the employee.
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.
If the employer disciplines the employee who attended work slightly high, but fails to discipline the employees who consumed alcohol, the disciplined employee could make a claim that the employer is not applying the policies equally and therefore was unjustly disciplined.
At this point, we don’t know how a court would rule. But conceivably a judge could accept the argument that the employer treated the employee unfairly. What is the difference between being slightly intoxicated with alcohol versus cannabis? The employer would undoubtably argue that the effects of one cannot be compared to the effects of the other and that the consumption of cannabis is different than the consumption of alcohol. This argument is also persuasif, 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.
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.