By Erez Harel

2018 may be a bit hazier for employers than in previous years with the federal government’s introduction of legalized possession of marijuana slated for July¹.

With this legislation, concerns and considerations around accommodation come to mind, and as HR professionals we need to help our leaders get through the cloud of confusion to a place where this new reality is understood and incorporated into ongoing processes and procedures.

In order to get a better understanding of the coming changes, I recently attended a webinar hosted by Rudner Law on The Legalization of Marijuana: How to Balance Compliance, Safety, and HR Concerns. The following details the salient points that I took from the session and provide a starting point for how you can best support your leaders as the new legislation continues to unfold.

Medication, Recreation and Legislation
One thing that employers need to realize is that marijuana has been consumed in Canada legally since 2001 when the government introduced the Marijuana Medical Access Regulations, which stipulated that a prescription and license were required to consume it legally. In 2014, this legislation evolved such that marijuana for medical purposes only required a medical prescription.

What’s different in 2018 is that the proposed legislation will legalize the recreational use of marijuana. As this new legislation is really only an evolution in legal marijuana consumption, business leaders should not view this change as an emergency, but rather as an opportunity to refresh their current drug and alcohol and accommodation policies and the roles and responsibilities within those policies.

Breaking Down the Duty to Accommodate:
As we can imagine with the introduction of this new legislation, one burning question business leaders will have is: to what extent will operations be impacted by this change? The simple answer is, nothing really should change as employers always need to review accommodation requests in good faith knowing that there may be some hardship in accommodating these requests. As always, employees must demonstrate a justifiable need for accommodation (ideally as outlined by the employer’s accommodation policy) if marijuana or some other drug consumption impacts an employee’s schedule or some other key component of the job.

From a marijuana accommodation perspective, it’s important to break down the four different kinds of users of the drug to frame the accommodation approach:

1. Casual/recreational user – uses marijuana casually or socially like alcohol and will become more common as laws and norms evolve.
2. Addicts – marijuana use is fuelled by addiction and this is beyond a person’s control.
3. Self-medicators – use marijuana for medical purposes without a formal prescription. This can be seen with people using the drug to manage pain from a chronic condition.
4. Prescription users – use of marijuana is required to treat a medical condition and an individual has obtained a prescription from their doctor.

The first example is relevant as the legislation that is being introduced specifically focuses on legalizing recreational marijuana use for the first time in Canada. Presumably someone coming to work or at work and unfit to fulfil their duties because of recreational drug use would have a very difficult time demonstrating a need for accommodation – assuming they even request one.

Hazy Case Study Brings Employer Clarity
Moreover, there is no medical basis or human rights legislation tied to marijuana recreational use which would require an employer to make changes to a schedule, process or operation. Let’s review a recent real life example that illustrates this²:

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift. The bartender also served as assistant manager of the restaurant. The employer had a policy that prohibited consumption of drugs or alcohol while on shift. The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated.

After being caught smoking marijuana, the employee claimed that he used it for a “chronic pain condition”. He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”.

The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability. Therefore, the employee had not proven that there was a connection between his disability and his termination. As such, his human rights complaint was dismissed.

The main takeaway from this case is that an employee needs to fulfil their role in clearly demonstrating to their employer a need for a marijuana-use accommodation as early as possible for a fair assessment to be made by the employer.

The other three examples in the user list above requires the employer to review each situation or request for accommodation with due consideration based on the possible medical or human rights implications. Most importantly, employers should not dismiss outright any claim as each situation needs to be looked at on its own merits.

How HR Business Partners Can Help:

1. Ensure that there is a clear drug and alcohol policy which leaders are familiar with and vet the policy with appropriate stakeholders including legal since impacts of this new legislation continue to unfold, particularly in the areas of drug testing at work and discipline.

2. Ensure there is an accommodation policy which leaders are familiar with and which incorporates:
   1. An onus on employees to provide detailed information;
   2. The fact that the employer can assess all options and determine if they are viable in light of overriding Occupational Health and Safety requirements; and
   3. The fact that employees are not entitled to dictate their preferred form of accommodation.

3. Reinforce to leaders that:
   1. If approached, employers need to take each accommodation request seriously;
   2. They should not be requesting specific diagnosis, make assumptions or judgements, or request information irrelevant to job duties; and
   3. Accommodations don’t need to be complicated and may be as simple as a change in schedule or extended breaks assuming a justifiable need is presented.

As HR professionals, our goal is to keep the business moving successfully and prevent major interruptions in a constantly evolving environment.  We should see the introduction of new legislation as an opportunity to assess our policies, engage with leaders and their employees, and reinforce clear roles and responsibilities.

Erez Harel, MBA, CPHR is a senior HR business partner with CHC Helicopter, a BC-based company with a talented and passionate global team providing offshore transportation to the oil-and-gas industry, flying search-and-rescue and emergency medical missions, and delivering maintenance/repair/overhaul and support services. He can be reached via LinkedIn.

1. Backgrounder: Health Canada (2017, April). Retrieved from canada.ca

2. Miedema, A. (2016, August 5th). Bartender, fired for smoking marijuana at work, loses human rights complaint. Retrieved from www.occupationalhealthandsafetylaw.com