In Ontario, recreational consumption is prohibited in public, at work
By Stuart Rudner and Nadia Zaman
On Oct. 17, the legislation decriminalizing cannabis in Canada will come into force.
The reality is that cannabis use, whether it is medicinal or recreational, is already far more prevalent than it used to be.
So what does this mean for the workplace?
Can employees now smoke cannabis at work or on their breaks? What should employers be doing to get ready?
Educate yourself on what cannabis is, and what it is not, as well as what the new laws allow. Particularly when it comes to medicinal use, “cannabis” does not necessarily mean smoking a joint. It can be used topically, through edibles, or through a vaporizer.
In many instances, the ingredients that cause impairment in recreational cannabis can be removed. So your employee that is prescribed cannabis may well not be smoking nor impaired after consumption.
The legalization of recreational cannabis makes it very similar to alcohol. Contrary to what many people are concerned about, it does not mean that employees will have the right to be impaired or consume cannabis in the workplace.
In fact, the Ontario government passed a provincial act, expected to come into force at the same time as decriminalization, explicitly prohibiting the consumption of recreational cannabis in the workplace and any public place, with exceptions for medicinal cannabis.
Duty to accommodate
Depending on the circumstances, employers may have a legal obligation to accommodate employees with respect to the use of cannabis, such as employees who have a prescription for medical cannabis or have a cannabis addiction.
Addiction is recognized as a disability under human rights legislation, and thus, an employee who has a marijuana addiction may trigger the employer’s duty to accommodate up to the point of undue hardship, unless the employer can show that there is a bona fide occupational requirement (e.g. safety-sensitive position).
Accommodation is a two-way street: the obligation is on the employee to come forward with their request for accommodation and provide sufficient information to allow the employer to assess the need and options for accommodation, including an analysis of whether accommodation is possible without undue hardship.
Employers are entitled to understand the limitations on the employee’s ability to carry out their job functions. An employee’s request for accommodation of marijuana use should be treated just like any other request for accommodation.
Employers have a competing duty to take every reasonable precaution to protect workers under the Occupational Health and Safety Act. Even if the duty to accommodate is triggered, no law will permit employees to work while impaired if doing so poses a safety risk to themselves or others.
Employers should have clear workplace policies and procedures in place with respect to cannabis use. While an absolute ban on drugs and alcohol may not be feasible (for example, sales employees may be expected to wine and dine clients), entitlements, limitations, duties and disciplinary consequences of breach of policy should be clearly set out.
You may already have employees in your workplace who are using prescription medication that can cause impairment; cannabis should be treated in the same manner — it is only a concern if it will interfere with the employee carrying out their duties.
Employers should have a clear policy in place which includes the duty to report any such prescription medication, to allow you to assess the need for accommodation in compliance with the Human Rights Code.
Your workplace policy should encourage employees to report any addiction issues related to the use of recreational cannabis so that you are able to accommodate the employee’s disability pursuant to human rights legislation.
Employers should be mindful that testing for drug use, including cannabis, is only permissible in limited circumstances, and any drug and alcohol testing policies should be drafted, reviewed and updated in consultation with an employment lawyer. Employers would be well-advised to consider less intrusive measures than testing.
Responding to requests for accommodation
It is crucial to have an accommodation policy and process. In responding to requests for accommodation, employers would be well-advised to adopt the following practices:
- Do not dismiss any requests out of hand.
- Have one process for responding to all requests for accommodation - to learn more about how to respond to requests for accommodation, read our blog post here.
- Maintain communication with the employee throughout the process.
- Require appropriate information, including medical documentation if applicable, speaking directly to the employee’s ability to do the job. To learn more about the role of medical documentation in disability-related accommodation requests, read our blog post here.
- Research and educate yourself. Work with the employee to understand the needs and limitations, and how the ground intersects with job duties.
- Do not stereotype.
- Assess whether there is a legitimate need for accommodation.
- Consider options for accommodation. Employees are not entitled to their preferred form of accommodation; employers are entitled to ascertain what options are available, and choose a reasonable option. In considering whether accommodation would cause undue hardship, and in comparing available options, employers can consider the cost, outside sources of funding, and health and safety requirements of the job (if any). Remember, some hardship is acceptable.
- Document all considerations and assessments. This will help prove that you have taken every step up to the point of undue hardship, and as a result, you will be in a much stronger position to defend a discrimination claim.
- If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
- Maintain confidentiality.
- Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.
Further, in order to help avoid unnecessary and significant liability, employers should seek advice from an employment lawyer before imposing discipline relating to the use of cannabis. Even smoking marijuana while at work does not necessarily mean that the employer would have just cause for dismissal.
At the end of the day, there has been a lot of concern expressed by employers, but the sky is not falling. There is no reason to panic, but now is a good time to review your drug and alcohol policies to make sure they accord with legal and societal realities.