Employment and Labour Law Blog: The Sky is Not Falling - so what Marijuana?


On October 16, 2018 nearly every employer in Ontario with employees who operated big equipment or whose jobs required a clear mind, had a workplace policy about drug and alcohol use.

It probably said that every employee was responsible to attend work capable of performing their regular duties.  There would be a rule at work that said, “Possession, use or distribution of illegal drugs, alcohol or prescribed or other drugs which may impair performance are improper.”  

On October 17, when the possession of marijuana was no longer illegal in Canada and when marijuana became a “legal drug”, those work rules still applied.

In the same way, the employer has remained responsible under the Occupational Health and Safety Act to do everything reasonable in the workplace, to make it safe.

Employees still must follow the employer’s safety rules and work safely.  In the same way employees cannot attend work in a drunken state, they cannot show up floating on a marijuana high.  In each case, the employer would remove the employee. The safety risk is unacceptable.

The fact that Canadian workers may use marijuana before they come to their workplace, does not remove their duty to present themselves fit and capable to do their duties.  

There are debates yet resolved about how much alcohol or marijuana must be ingested to affect a person’s judgment and ability to function attentively.  However, in the workplace the test will be more subjective, because the clear rule is: safety first. If a supervisor thinks an employee appears to be acting in an unsafe manner, the supervisor must remove the employee until that issue is settled.  Depending on the workplace, the employee may simply be sent home.

In others, such reasonable cause conduct may generate a test.  In safety sensitive workplaces where clear judgment is a serious issue, severe discipline may be justified.

The key point from October 17 forward is that the legalization of marijuana does not change the responsibility of every employee to prepare themselves properly to be able to work safely.  

In considering how to prepare, every employee should recognize that they will need to appear to other workers and supervision capable to work.  The perception of the supervisor, not the personal opinion of the employee will determine access to the workplace.

Bottomline: employers will treat the use of marijuana, the same way they treat alcohol.  Neither has any place at work.