Upcoming changes to legislation that governs how medical marijuana is approved may mean huge changes for employers and policies across Canada.

Medical marijuana is controlled in Canada through the Marijuana Medical Access Regulation (MMAR), under the Controlled Drugs and Substances Act established by Health Canada. But the MMAR is changing. Currently, licensed users can grow their own marijuana, buy from licensed, small-scale home-based growers or buy through the government. As of April 1, however, the government will license commercial producers, who, in turn, will deal directly with buyers who are required to get approval from a doctor. All Health Canada will do is license and inspect the producers.

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Under the new system, physicians will change from declaring a medical condition as a prerequisite for obtaining a licence to prescribing medical marijuana as any other drug.

Patrizia Piccolo, a partner at Toronto-based Rubin Thomlinson LLP, says this could cause some buzz (pardon the pun) in the workplace. “When a drug becomes more readily available,” argues Piccolo, “there is a likelihood that it becomes a more acceptable thing to do, like cigarette smoking once was, in the workplace.”

In other words, there soon will be fewer regulatory barriers to prevent your workers from rolling up on the job. What would you do if your employees started smoking pot at work? What can you do?

There are two separate concerns here: the effects of second-hand smoke on other employees (not to mention, customers) and, more important, the potentially dangerous situation created by an employee with a safety-sensitive job—like, say, a forklift operator—coming to work stoned.

Smoking in the office

It’s illegal to smoke in the workplace—but the rules are very specific about prohibiting the smoking of tobacco in the workplace. Provincial legislation makes no reference to the smoking of any other substance. “Employers need to be cognizant of the fact that people with this licence are legally permitted to smoke [marijuana] inside around other people,” says Piccolo.

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The obvious solution here is asking your employees to smoke up outside. Pot brownies and other means of ingesting marijuana also would eliminate any second-hand smoke. One of the 200-plus entrepreneurs applying for grower licences will surely add baked goods to their list of products.

Workplace safety

The more serious issue at play is workplace safety. “Employers need to realize that this is just like any other prescription medication,” says Piccolo. “Employees have a right to take it, but employers have a right to provide a safe working environment. An employer has no obligation to allow an employee that may be impaired to operate equipment that may harm themselves or someone else.”

Employers do have the right to create company policies around issues like this, as long as they stay within the confines of provincial human rights codes or acts—legislation that every province has in some form. “If someone requires medication for their disability, employers have a duty to accommodate the individual to the point of undue hardship,” explains Piccolo. “One of the defences with undue hardship is the safety of themselves or others.”

So, should you rewrite your office policy right now? Maybe not yet. The number of Canadians with prescriptions for medical marijuana is expected to reach 450,000 by 2024, according to Health Canada. If, by then, Canada’s population is approximately 38 million (according to projections), that’s still less than 2% of the general populace smoking medicinal pot. The amount of people looking to light up at work will be even smaller.

If Statistics Canada’s 2012 Canadian Community Health Survey is any indication, employers in B.C. and Nova Scotia might want to be the first to look into stricter workplace policies concerning marijuana use. The two provinces are home to the highest percentage of pot users in Canada. (But, of course, these smokers don’t necessarily have a prescription; some are just smoking illegally—and you’re under no obligation to accommodate that).

What do you think? Would it bother you if you knew your employee was smoking marijuana at work? Leave your comments below.

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