Can you ask an employee to disclose that they’re using medical marijuana or other legal drug that may impair their ability to work safely?
Asking about potentially impairing legal drugs like medical marijuana in the interest of safety should be okay if:
- The job is safety-sensitive;
- You don’t ask employees which drugs they use;
- You don’t ask them to disclose the diagnosis or medical condition they use the drug for; and
- You keep the response confidential.
The other key factor is how you use the information. Your objective should be to help not discipline the employee. Rather than ask them direct questions, I’d encourage employees to come forward and disclose their drug uses and/or dependencies voluntarily on the understanding that they won’t be punished for doing so. This recommendation is based on the 2017 Canadian Supreme Court case called Stewart v. Elk Valley Coal Corp. upholding this voluntary disclosure approach.