Weed at work

BACKGROUND
Since recreational cannabis use was legalized in Canada in October 2018, use of the drug has unsurprisingly increased, particularly by first-time users who decided to try the drug now that it’s legal. Leading up to legalization, many employers were concerned about the effects it could have on the workplace — especially those with safetysensitive workplaces. Legal advisor Alexander Kowal looks at the past year-plus of legalized marijuana and the strategies employers can take to protect their workplaces.

It has been a little more than one year since the federal government’s Cannabis Act came into force, legalizing the recreational use of cannabis in Canada. In the immediate aftermath of legalization, first-time cannabis users nearly doubled. According to Statistics Canada’s National Cannabis Survey, first-time users in the first quarter of 2018 numbered 327,000 compared to 646,000 first-time users in the first quarter of 2019. Perhaps most troubling for employers is that the National Cannabis Survey also revealed that an estimated 500,000 workers admitted to using cannabis before heading to work or while at work.

Given the apparent increase in cannabis users since legalization and the fact that a significant percentage of employees are either under the influence of cannabis and/ or using cannabis while at work, it is important to revisit the legal framework and best practices as it relates to cannabis use.

Cannabis use falls into two sometimes overlapping categories — medical use and recreational use — and both types of use can give rise to human rights considerations.

Medical use of cannabis
Cannabis for medicinal purposes has been legal since 2001. Since that time, employees who have been prescribed medical cannabis have been entitled to be accommodated in the same manner as any other employee who has been prescribed medication. That said, an employee with a prescription for medical cannabis does not have an unfettered right to use cannabis while at work. Even with a prescription, an employee is not entitled to:

• Compromise their own safety or the safety of others
• Be impaired at work
• Have unexcused absences
• Smoke cannabis in the workplace.

When an employer is presented with a medical cannabis prescription and a request to use cannabis at work, the employer’s first step should be to request information from the employee’s physician. The information requested should be limited to what is reasonably necessary to assess the employer’s accommodation obligations and may include:

• Confirmation that the cannabis needs to be consumed during working hours;
• How often the cannabis needs to be consumed;
• Where the cannabis will be consumed, if being consumed during working hours;
• How long the cannabis must be used;
• Whether there are side effects, and if so, what those side effects are and their duration.

Once this information is received, an employer will have to assess its accommodation obligations. These accommodations will be similar to accommodations provided to other disabled employees and can include providing more frequent breaks (to allow for consumption), altering an employee’s duties, altering an employee’s schedule and moving an employee out of a safety-sensitive position (if possible). The duty to accommodate ends if the employee cannot perform the essential duties of their job, with or without accommodation, or if undue hardship is established.

As it relates to workplace safety and accommodation in particular, the Newfoundland and Labrador Supreme Court decision in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc. is particularly instructive. In that case, an employee disclosed his use of medical cannabis and was denied employment on the Lower Churchill Transmission Construction Project as a result. The employer had concerns regarding the potential for impairment in the performance of safety- sensitive duties. A grievance was filed on the basis that the decision to refuse the employee the work was discriminatory. In both the arbitration and the judicial review application, it was held that undue hardship would arise if the employee was allowed to work. In particular, because the employer could not reasonably determine how long the employee remained impaired for after consuming cannabis nor any reasonable means to test for impairment, it could not reasonably manage the safety risk posed by the employee’s consumption. The union’s argument that the employer had to employ the employee unless it could demonstrate impairment was rejected by both the arbitrator and the court. Instead, once possible impairment was raised, the employer was reasonably entitled to medical information that clearly demonstrated the employee was able to work safely.

Employees also likely owe an obligation to seek accommodation from their employers to use cannabis at work for medical purposes, especially where the employee is in a safety-sensitive position and where the employer has a policy prohibiting use. In Atchison v. L & L Painting and Decorating Ltd., an employee was terminated for smoking cannabis at work during his breaks, contrary to the employer’s policy prohibiting cannabis smoking on the job. The employee was a painter who worked on high-rise buildings and, therefore, his position was considered safety sensitive. In finding the termination to be non-discriminatory, the Human Rights Tribunal of Ontario (HRTO) confirmed that, although the employee had a medical certificate permitting cannabis use for medical purposes, he never provided the certificate to his employer or requested accommodation. His failure to do so while still using cannabis at work, contrary to the employer’s policy, represented a genuine health and safety risk. In finding that the employer’s policy was not discriminatory, the HRTO noted that its prohibition against the use of cannabis at work was bona fide and reasonable and that the policy did not impose automatic termination or close the door on accommodating employees who used medical cannabis in a non-safety-sensitive position. Interestingly, the employee’s own doctor testified that, if he had known the employee’s position, he would have prescribed a lower dose.

While accommodating medical cannabis is a relatively new and evolving area of the law, the guiding principles associated with accommodating an employee’s disability and/or prescription drug use while at work are not so. To minimize risk, employers should ensure that they have clear policies related to prescription drug use, including medical cannabis and workplace accommodation, and that their employees are properly trained on these policies.

Recreational use of cannabis
Much like alcohol, the ability to legally use cannabis in general does not provide an employee the right to use it or be under the influence of it while at work. Unless the employee has a prescription for cannabis (see above), an employer can properly prohibit employees from using or being under the influence of cannabis while at work. Expectations regarding any prohibition against using cannabis at work, and the consequences for breaching that prohibition, should clearly be set out in a written policy. That said, a matter can move from disciplinary to medical where an employee is addicted to cannabis. In particular, addiction is deemed to be a disability under human rights legislation and gives rise to an employer’s duty to accommodate. Where an employee claims to be addicted to cannabis, medical inquiries should be made to confirm the addiction and an accommodation plan should be developed. This plan, much like those of alcohol or other drug dependencies, generally involves placing the employee on an unpaid medical leave of absence to seek treatment for their addiction and a clear expectation that the employee can only return to work once medically cleared and under strict conditions related to future use. In safety-sensitive positions, an employer may be able to terminate an employee who is addicted to cannabis where their cannabis policy clearly provides that employees are obligated to disclose any addiction before a workplace accident/near miss and they fail to do so. In that scenario, the employee’s termination would not be related to the cannabis use itself but to the breach of the disclosure provision in the policy.

Accommodating cannabis use, whether for medical or recreational purposes, will be primarily a fact-driven process. However, employers who are proactive and respond to accommodation issues objectively, based upon an individual analysis of the medical evidence and the employee’s particular circumstances, will be in the best position to deal with cannabis use in the workplace.

For more information, see:

• International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48 (N.L. S.C.).
• Atchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (Ont. Human Rights Trib.).