Handling Weed in the Workplace

Our temporary employee was fired yesterday for smoking weed in our client’s parking lot. I want to tell you more about that.

With cannabis being legal in Canada for more than month now, I’m starting to see first hand the effects that cannabis legalization has on the workplace. I want to share this particular example as a review of what not to do as an employer.

Here is what happened...

Our candidate recently started in a customer service role. She was performing very well. She went out at lunch and openly smoked weed in our client’s parking lot where other employees smoke tobacco. Another employee saw her, and reported it. Her direct supervisor terminated her immediately, stating that their company has zero tolerance for impairment and use of cannabis at work. 

We learned of the issue after the candidate had been fired. Our client wanted to know if we knew of the her cannabis use, and we did not. 

As you’ll see here - both our client and candidate could have handled this situation better.

The Client

Our client should have called us immediately and told us what happened. We would then have inquired with our candidate about what happened and why.

Did you know that the Ontario Human Rights commission states “the employer has a duty to inquire, not fire”

Through our inquiry, we would have learned that the candidate was prescribed marijuana (if this is true), and we would have set out to gain a much better understanding and set in motion an accommodation plan. We would have verified the medical claim and sought clarification on the validity of the timing of use (did she have to smoke at lunch time?), the product choice (could an oil be used instead?), and the location of use.

Now as to our clients position on zero tolerance of cannabis use, this can legally only relate to the recreational use of cannabis. Medicinal marijuana would be considered a prescription like any other – such as insulin, or oral chemotherapy, or other pain management pills.

The Candidate

Now let’s discuss our temporary employee: She did not have to tell us about her prescribed marijuana in advance of being placed. Candidates don’t tell us they are taking medication for other things and they don’t have to share their medical history. We cannot ask about this pre-placement or at the time of placement for privacy reasons… it would be like asking if someone is pregnant.

Once employed, our candidate should have communicated this information with us. She could have said “I use medical marijuana, here is my prescription. I use at lunch due to constant pain. It allows me to get thru the rest of the day. I’m not impaired because of ____ and where would the client want me to be when I smoke?"

Our candidate did none of that. She did not communicate and instead made assumptions.

Here Is What We Did

We emailed the client to explain the above. Because of their quick action, they are now open to a potential human rights complaint, and they may lose if the prescription is true. (It may not be.) 

If the candidate does not provide evidence, we will provide our client with the outcome of the Medical Questionnaire and they may reconsider her candidacy.

We also spoke with and emailed our candidate with a Medical Questionnaire specific to Medical Marijuana. The form will let us know what accommodations are required and if lunch time use by smoking is essential. For your information, what we heard from our candidate is that she uses marijuana for a medical condition but it sounds like it was self-prescribed – and we can’t prescribe ourselves. That won’t hold up.

Q&A

I’d like to answer some questions that arose in dealing with this particular matter...

Did the candidate have to tell us in advance that they were on a medical marijuana prescription? 

NO. Like any disability, no requirement to disclose in advance.

Does it matter that the candidate is in a desk job? 

Yes, because there is no real safety concern – versus a machine operator where safety would be of greater concern. We still couldn’t ask a machine operator if they have a prescription for marijuana, we can’t ask this, but the safety element would be more relevant and would complicate the way in which this unfolds.

Was the candidate allowed to smoke in the client’s parking lot? 

Employers and building owners have the right to say “no smoking on or near the premises including tobacco and cannabis”. Some buildings and hotels are creating new areas for cannabis smoking because tobacco smokers don’t want to smell like weed. Some employees who smoke tobacco would not want to smell like cannabis at work. Prescription or not, an employer can restrict the location of use.

Should the candidate have requested accommodation once employed, once she started on the job? 

My opinion is that she should have said something to us and not assumed she could smoke weed near the office. Had she smoked elsewhere, it’s possible no one would have known. While an employee does not have to disclose, it seems to me that some dialogue here could have prevented the sudden termination. My point is that if you need to smoke marijuana for medicinal purposes, we need more information in order to handle this properly.

What would the Medical Questionnaire reveal? 

It would show a lot actually:

• Was medical cannabis prescribed to the employee as part of her treatment plan
• If yes, what was the method of consumption – ingested, smoked, vaped, oil form
• When/what time of day would the consumption occur under prescription
• The effect and duration of the effect of the cannabis
• If the employee could perform their duties using cannabis in that form at that time
• What duties the employee could not perform using prescribed cannabis
• If THC is medically required in the employee’s treatment plan – or if CBD would be sufficient
• If there is an alternative available to medical cannabis

If we knew our candidate used medical marijuana, would we have placed her? 

Yes, this is like any other medical prescription. Over 200,000 Canadians used cannabis at work last year with a prescription. We just didn’t know it! This is not new. We would place the person, but we would be aware of any limitations on the work assigned. If the limitations were too great, we would take that under consideration and find her the right assignment.

Would we disclose the use of medical marijuana in advance of a placement? 

Only if the candidate told us to in writing. Some candidates prefer to deal with accommodations in advance, no surprises. We would not disclose automatically as this would violate both privacy and human rights.

Remember...

A company policy cannot state zero tolerance –it can only state zero tolerance for recreational use at work, or impairment at work. Prescribed cannabis is the same as prescribed penicillin.

I hope this helped you put some context to the evolving subject of weed at work.

Have you had a similar experience happen to you? Let me know how you handled it in the comments below.

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