Legal Spotlight: Adapting the Workplace to the Legalization of Cannabis

On October 19, 2018, the purchase of recreational cannabis became legal under the Cannabis Act.

In the past three months, 16% of Canadians reported using cannabis.[1]  Use is expected to increase.

With greater use, employers must be prepared to address cannabis use in the workplace.

What Employers Should Know

The best practice for employers is to identify potentially dangerous situations as soon as possible, be proactive, and be prepared.

Although cannabis is legal, employees do not have the right to use recreational drugs during work hours, or in the workplace. It is important to remind employees that its use and possession will not be tolerated in the workplace. Employers must also bear in mind they can be held vicariously liable for their employees’ drug related incidents.

Employers should remember that safety comes first. According to the Ontario Health and Safety Act, employers must take “every precaution reasonable in the circumstances for the protection of a worker.” Employers also have obligations under the Smoke Free Ontario Act.[2] This legislation prohibits smoking cannabis including medical marijuana in any enclosed area or other designated areas over which the employer exercises control. It also requires employers to remove from the workplace anybody who refuses to comply. However, since cannabis can be consumed without smoking, employers will have to address all forms of consumption in their drug and alcohol policies.

Tips to help you manage these risks:

  1. Update your Company’s Drug Policy

 Employers should update their policies and procedures to include the prohibition of cannabis in the workplace and provide training on the policy. The employer’s response should be tailored to specific needs and concerns of each business.

This is of particular concern to our American and other foreign clients which have drug policies that prohibit the use of “illegal substances.” This terminology will no longer include cannabis.

Your company’s drug policy should include the following:

  • A clear statement that recreational cannabis use, and possession will not be tolerated;
  • Scope who the policy applies to;
  • Provide clear examples of what will not be tolerated. Ensure employees clearly understand what they can and cannot;
  • Cover all forms of consumption such as oils, edibles etc.;
  • Implement a procedure on how to spot impairment and the appropriate steps that need to be taken in response.;
  • Address drug and alcohol dependency and the company’s approach to accommodation;
  • Address the use of prescription drugs by employees; and
  • Clearly state appropriate disciplinary actions for violations of the drug policy, up to and including termination which addresses special accommodations due to disabilities.

Employers should implement a policy that sets clear expectations for their employees. It is important that employers be able to prove that employees understood the policy before cannabis consumption can be used as a basis for dismissal.

  1. The Duty to Accommodate

Employment policies must incorporate accommodation when an employee notifies an employer that he or she requires support due to an addiction or medical necessity.

Employers must recognize employees’ use of medicinal cannabis, to ensure that they do not discriminate against such employees. Recently, the Ontario Divisional Court decision in Bottiglia v Ottawa Catholic School Board (2017 ONSC 2517), ruled that in certain circumstances, an employer is justified in requesting an independent medical opinion from an employee as part of its duty to accommodate. Employers can seek a medical examination from an employee who claims use of medicinal cannabis.

Drug and alcohol addictions are considered disabilities under human rights legislation.  Therefore, an addicted employee would be protected from discriminatory actions by employers and other employees. Employers must accommodate these employees up to the point of undue hardship. Undue hardship is defined as an action requiring significant difficulty or expense when considering several factors.

Employers also have a duty to maintain the confidentiality of your employees’ personal and medical information.

  1. Impairment and Detection

 One of the biggest challenges for employers will be the ability to identify impairment, because consumption can be inconspicuous.  Cannabis can be baked into food and consumed without an odor.  THC affects individuals differently, so symptoms of its use will vary from user to user.  In addition, THC can stay in an individual’s system for weeks or even months.

Human rights legislation limits the use of employer drug testing to specific circumstances. A drug/alcohol testing policy must be: (1) based on a rational connection between the purpose of testing and job performance; (2) necessary to achieve workplace safety; (3) used in limited circumstances; (4) use reputable procedures; (5) provide accommodation for people with addictions who test positively; and (6) ensure confidentiality.

Generally, employers have the right to conduct a drug test in the following circumstances: (1) after a serious safety incident or a near miss situation; (2) if there is a reasonable suspicion of impairment; and/or (3) as part of a post reinstatement program.

Employers of a safety-sensitive business have more flexibility to conduct drug tests, including the right to require pre-employment drug testing as a condition for employment if heavy/dangerous equipment is used on the job. A safety-sensitive position is one that, if not performed safely, can cause significant damage  to property, the environment, or injure the employee or others.[3]

Employers considering drug testing should also consider the cost and accuracy of the tests.

Conclusion

Generally, a well drafted drug policy tailored to the specific needs of the company will give employers an advantage. Since each business is unique, there is no standard template for a drug and alcohol policy. A successful policy will depend on how well it addresses the specific features of the workplace in question.

 

3 Ontario Human Rights Commission, Drug and Alcohol Testing. Online: <http://www.ohrc.on.ca/en/drug-and-alcohol-testing-%E2%80%93-frequently-asked-questions>

[1] National Cannabis Survey, Statistics Canada; August 9, 2018. Online: <https://www150.statcan.gc.ca/n1/daily-quotidien/180809/dq180809a-eng.htm>

[2] Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3.

[3] Impaired at Work – A guide to accommodating substance dependence, The Canadian Human Rights Commission.