LEGAL
Weed in the Workplace
What employers need to know to prevent
their workplaces from going to pot
With the imminent legalization of marijuana,
some employers in the construction industry
worry their workplace cultures – and safety in
particular – will go to pot, so to speak. Before
the legalization takes effect, it is important employers get all
the facts about the law and learn how they can create policies
that will help maintain a safe workplace.
The legalization of marijuana is expected to take effect as
early as July 1, 2018. Once legalization takes effect, adults will
be permitted to purchase, possess, distribute and even grow
marijuana (to a certain extent).
Under the new regime, the federal government will oversee
the production and manufacturing components of mari-juana
legalization, while the provinces and territories will be
responsible for further regulations and restrictions, such as
increasing the minimum age, lowering possession limits or
restricting places in which consumption is acceptable.
In this changing landscape, employers are left in a
haze, wondering what this will mean for their workplaces.
What can and can’t they do in terms of controlling their
employees’ use of marijuana? Can they ask their employ-ees
to submit to random drug testing? How do they test for
marijuana impairment?
It appears as though the federal government does not
intend to impose any restrictions specific to regulating
marijuana in the workplace. Accordingly, employers will be
responsible for regulating the use of marijuana in their work-places,
and should consider whether their current workplace
policies dealing with drug use and impairment require
adjustment. The shortening window of time prior to can-nabis
legalization is also a good opportunity to ensure that
existing workplace policies are commensurate with the legal
principles already in place regarding drug or alcohol impair-ment
in the workplace.
Drug and alcohol testing
Employers are entitled to prohibit impairment from marijuana
in their workplaces. Generally, no employee can be subjected
to random, unannounced drug testing. That being said, an
employer may require drug testing of an employee where they
have reasonable cause to do so. An employer may have reason-able
cause where an employee exhibits behaviours or the facts
suggest that they may be impaired by drugs at work.
Employers may incorporate provisions requiring drug (or
alcohol) testing following an incident, accident or near miss
in the workplace into collective agreements or employment
contracts. Such testing would be justified provided there is
some information about the incident and the employee’s
connection to or role in the incident that suggests impair-ment
may have been a factor.
Such policies will be especially relevant in safety sensi-tive
workplaces such as those involving machinery or heavy
By Jenna R. Seavers, Fillmore Riley LLP
LIGHTSPRING / SHUTTERSTOCK.COM
PILING CANADA 89