Original posting by Howard Levitt in The Financial Post, November 13, 2018.
Oct. 17 has come and gone; recreational marijuana has now been legal in Canada for almost a full month.
In the leadup to it, there were those who prophesied that the legalization of recreational marijuana would open the door to myriad headaches for Canadian employers, and that HR departments from coast to coast would find themselves in crisis.
Yet none of that has come to pass.
Not one of my clients called me on Oct. 17 to report that hippies had taken over the workplace, that half their staff had reported for work stoned or that the office had become thick with the smell of marijuana. For most employers, Oct. 17 was essentially business as usual. Why? – because, contrary to the doomsayers who predicted calamity (and offered employers the “antidote” of costly policy overhauls and training programs), many employers already had the following policies and protocols in place:
— Drug and alcohol policies that forbid bringing any drugs (except for prescription drugs, to be used as prescribed) or alcohol into the workplace, and which also prohibit being under the influence at work or while otherwise on duty.
— Reporting mechanisms for employees who believe that a co-worker may be intoxicated or impaired, training for managers on how to deal with suspected impairment, and investigation protocols to be followed in the event of accidents and “near miss” scenarios.
— Smoke-free workplace policies – which have been mandatory in Ontario for more than 10 years.
Also, of course, common sense did not go up in smoke on that day. What intelligent (or even semi-intelligent) employee would construe the legalization of recreational marijuana as a licence to show up high for work? Or to smoke a joint at his or her desk? Or to bake cannabis into cookies for an office potluck?
The fact is that Oct. 17, 2018 did not usher in any new rights for employees; and there are no new obligations on employers to permit, condone or forgive cannabis use in any work-related context. The no-nonsense advice that we’ve been providing to employer clients in regard to these issues is essentially as follows:
— Start with the proposition that – for all intents and purposes – recreational marijuana is illegal in the workplace. Ontario’s Cannabis Act expressly forbids the consumption of cannabis (except for medical marijuana) in “a public place” and in “a workplace within the meaning of the Occupational Health and Safety Act.”
— Remind employees of the obvious – i.e. that the legalization of recreational marijuana is only relevant to their off-duty lives. As far as work and the workplace are concerned, they have no new rights to possess, use, share and/or be under the influence of cannabis.
— As necessary, tweak and update workplace policies and training protocols. But unless the company’s policies and protocols were deficient before, there is no need to re-invent the wheel.
All of this is a far cry from spending thousands of dollars on replacing existing policies, and on sending personnel on costly and time-consuming training programs. Such expenses are – in most cases – grossly unnecessary.
Yet I have seen this before, and I will no doubt see it again.
Every time employment legislation changes or there is a new legal development, there are opportunists standing ready to exaggerate the implications of the change, to proclaim that the sky is falling, and – of course – to proffer solutions … usually at a cost commensurate with the hype that has been stirred up.
So lucrative are such service offerings that many firms invest in and promote them heavily. In fact, some employment law firms have noticeably shifted their focus away from providing a traditional slate of legal services, so as to focus more heavily (or even exclusively) on policy review and/or training mandates. (Or, as the case may be, on costly “workplace investigations,” which – as regular readers of my column will know – I consider unnecessary in most circumstances. Usually, a well-planned and professionally executed internal investigation – which can be conducted for a fraction of the cost – will amply suffice.)
Some of the firms offering such services are reputable. Others less so.
That being the case, I offer the following words of advice to my business readers: caveat emptor.
When it comes to dealing with any new development that could impact on the company’s rights and obligations as an employer, remember that advertising a new development as a “game-changer” does not make it so. Consider the source of such publicity and promotion – and think about where their self-interest lies. Would you put your car out to pasture just because an auto dealer tells you that you need a new one, or would you want to check with your mechanic first?
In regard to employment law advice – and as is the case in so many other contexts – the old maxim is apt: “An ounce of prevention is worth a pound of cure.” And this is particularly true when the “cure” is an off-the-rack solution to an exaggerated problem.