Medical use of Cannabis has been legal in Canada since 1999. On October 17, 2018, the Cannabis Act came into effect which made Cannabis usage for recreational purposes legal throughout Canada. Although the use of Cannabis was not a new issue for HRs, and many companies had their relevant policies in place, the legalization of cannabis was still a challenge for the workplace as it might increase substance abuse, unsafe behaviors, and medical and insurance costs, and decrease the attendance and productivity. Especially for some safety-sensitive jobs, the increased potential of impairment from cannabis is worrying.
Like smoking cigarettes, it is also prohibited to consume cannabis (for both medical or recreational purposes) in the workplace. Though consuming cannabis on work premises is forbidden, some questions remain: what if employees consume cannabis during breaks or at home right before heading to work? How can an employee tell if an employee is high or not? How much cannabis intake could lead to impairment? The recreational use of Cannabis during work without addiction or perceived addiction is not protected by the Human Rights Code either.
The employer has the duty to accommodate any employee addicted to Cannabis or use Cannabis for medical purposes. However, the information on an employee’s addiction may not be learned by the employer and the request of the information may violate the Human Rights Code.
According to the Canadian Human Rights Commission, some employees may need to be treated differently in the workplace to prevent discrimination. This particularly applies to those in safety-sensitive positions.
Under Human Rights legislation, it is the employer’s responsibility to accommodate the worker that uses marijuana as a treatment for a medical condition or develops a dependency to marijuana which has been diagnosed as a disability to ensure that their needs are met. However, this does not translate to the idea that employers must permit employees to be impaired by marijuana while at work. When an employer is performing their duty to accommodate it should be done accounting for workers’ safety and is required only up to the point of undue hardship. An employer’s duty to accommodate ends if the employee is ultimately incapable of performing the essential duties of the job after accommodation.
In Aitchison v L & L Painting and Decorating Ltd, the Human Rights Tribunal of Ontario (HRTO) ruled that the termination of a painter who smoked marijuana for a medical purpose at work during his breaks was not discriminatory. The job was performed on the 37th floor of a building. The HRTO concluded the following:
Employers must better understand how increased normalization of marijuana use will affect their duty to accommodate. The article, “Clearing the Haze—The Impact of Marijuana in the Workplace” mentions how despite medical marijuana being a prescribed treatment since 1999 in Canada, the HRPA’s survey identified that only 11% of respondents have had to accommodate an employee that requires medical marijuana. A common pattern observed in employers when accommodating medical marijuana is the assumption that using it will impair the employee’s ability to do the essential duties of their job. Employers need to be informed of the shortcoming of making stereotypical assumptions about the abilities of an employee who consumes marijuana. While some assumptions may be valid where safety is a concern, it may be improper to diminish an employee’s duties based solely on assumptions.
Human rights case law confirms that it is an employer duty to be accommodating of the employee’s needs, but not their preference. Therefore, an employer has every right to ask the employee to consume marijuana privately, including away from workplace areas, as found in the example of Gibson v. Ridgeview Restaurant Limited. In this case, the Gibson was dismissed for going against the employer’s request that he not smoke marijuana within six feet of the restaurant entrance and the HRTO found no discrimination against the complainant. In addition to accommodating employees with prescriptions for marijuana, employers have to also be mindful of employees whose performance is affected by recreational marijuana use.
When it comes to substance abuse causing significant changes in an employee’s performance, part of the progressive discipline process may involve asking whether the employee needs any accommodation. If an employer disciplines or dismisses an employee without using progressive discipline or attempting to accommodate, they may be guilty of having discriminated against the employee on the basis of a disability.
Being aware of the changes in policies regarding the prohibition of marijuana usage in the workplace is the first step. Furthermore, employers should be educated on the signs of marijuana impairment since employers are required to ensure the safety of their employees in the workplace. Marijuana impairment can be difficult to detect, especially due to the rise in the consumption of odorless edibles. However, the designation of particular jobs as “safety-sensitive” can alter an employer’s legal obligation when dealing with cannabis-related accommodation requests or impairment in the workplace. It is clear that drivers, people who operate machinery like fork-lift, pilot, or nurse, need to be free from impairment while at work, because performing such work while impaired has the potential to cause great harm to themselves or others. For example, some airlines have established restrictive policies that prohibit their employees from consuming marijuana altogether. The airlines have taken the position that prohibiting employees who perform roles of a pilot or cabin-crew from using marijuana at any time is a bona fide occupational requirement.
Employers must invest time and money to train their employees on marijuana consumption in the workplace and keep them informed on the changes to the terms of their employment. Additionally, employers must train managers and supervisors and teach them on ways to address issues of marijuana impairment at work, and the appropriate steps that need to be taken in response to concerns being raised.
Employees who use marijuana for a medical purpose should be aware of any negative effects on workplace health and safety or the performance of essential duties. Furthermore, employees are expected to make their accommodation needs known— as seen in the case of Aitchison v L & L Painting and Decorating Ltd; and everyone is expected to cooperate in the accommodation process. The employee has a right to privacy as much as possible but is required to provide medical or other information to support a disability-related need. Although workers do not have the same obligations as employers and supervisors to ensure that every precaution reasonable in the circumstances for the safety of a worker is carried out, they do have general duties that would require them to take certain steps if they encounter situations arising from workplace impairment due to substance use. An employee is expected to act if a hazard is caused by the worker’s own impairment, or if the employee is aware of a hazard caused by other workers who may be impaired.
What consequences in the workplace may organizations face with the legalization of marijuana? A recent study, Preventing Another Big Tobacco, by Smart Approaches to Marijuana (2017), found that:
From this study, we can see the consequences that workplaces may face with the legalization of marijuana are: employees missing work more often, employees having more disciplinary problems, more safety issues, and increased costs for the employers due to employee absenteeism.
According to the Government of Canada (2019), under the Canada Labour Code, there is a requirement for organizations to have and implement Hazard Prevention Programs, which can include policies pertaining to drug impairment. In 2018, changes in the Cannabis Act to the Non-Smokers’ Health Act enforce prohibiting smoking cannabis in the workplace to help eliminate second-hand smoke that hurts other people’s physical health.
Consuming cannabis at or before work could be grounds for termination if it negatively impacts workplace safety. Drug testing could be used to detect employees’ use of Cannabis. However, drug testing can only be justified in very narrow circumstances, and the effectiveness of drug testing remains controversial.
A drug testing policy should be based on a legitimate concern for safety. Drug testing policies have the potential to intrude on people’s basic privacy, the potential safety benefits should be proven to outweigh the intrusion. Moreover, the policies’ legitimate purpose should only be to measure impairment out of safety purposes. Any other purposes involved, for example, monitoring moral values among employees or checking for productivity, or even improving employee wellness, would be difficult to justify as bona fide occupational requirements. When the drug testing results in single out employees with addictions or perceived addictions, result in negative consequences, the policy may be discriminatory against disability. The onus is on the employers to prove that drug testing is for bona fide requirements.
As concluded by the Ontario Human Rights Commission, drug tests could only be legal where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work. For specific situations in which drug testing may be found legal:
For random drug testing, the influence of the additional requirement is noteworthy. The Supreme Court of Canada rules on the random testing in the case Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. In this case, the employer had a random alcohol testing policy applied to employees in safety-sensitive positions. Those covered by the policy worked in a kraft paper mill which constituted an admittedly precarious work environment. An employee selected for the testing objected, and then the union grieved that policy. Although the employer tried to argue that eight incidents happened in the 15 years prior to the filing of the grievance where employees were found to be under the influence of alcohol during work. The Court ruled that the employer failed to satisfy the requirement of showing the evidence of existing risk, in other words, there was no serious problem of alcohol abuse. Therefore, imposing such a rule was not a reasonable exercise of management rights.
Even though employers set reasonable drug policy for cannabis usage, in order to prove that the employee violates policy, the employer will have to prove the employee was impaired to an extent that he or she couldn’t function safely. However, current drug testing techniques cannot sufficiently determine the extent of impairment. A commonly used drug testing is urine analysis. While a THC (the component that makes Marijuana effective) may be present in a person’s system, it does not indicate that he or she is still impaired under the influence of marijuana as a THC metabolite could stay in the body for weeks. Moreover, the available studies concerning Cannabis impairment are outdated. As a result, employers have little information on setting a measurement standard.
If an employee becomes aware of substance abuse in the workplace by a coworker, they should report it to their employer. Another way to address this type of issue is through the Internal Complaint Resolution Process under Part 2 of the Code. The steps for this are as follows:
Overall, we believe that the legalization of marijuana in Canada is a good thing. In the workplace, there can now be open transparency and discussions about drug usage between employees and employers. We acknowledge that there are concerns about safety and productivity in the workplace with the legalization of marijuana, but there are recommendations by the Human Resources Professionals Association’s article, Clearing the Haze: The Impacts of Marijuana in the Workplace, to keep the workplace under control and safe.
One recommendation they list is that “the government should keep two separate regulatory streams (medical and recreational) to allow employers to determine their duty to accommodate”. By doing so, employers will be able to know when they have a duty to accommodate for medical purposes.
Another recommendation listed is, “the government should give employers two sets of guidelines for marijuana use—one for medical marijuana and one for recreational cannabis”.
This is important because, with the new legalization of marijuana, organizations want advice from the government about how to deal with this drug.
Their last recommendation is, “employers should enact a clear drug policy that includes the definition of “impairment” in a way that captures medical marijuana use and when/where it is acceptable”. By having a clear definition and policy, employers will know how it applies to medical cannabis and the workplace. With this, organizations should enforce medical marijuana policies in the same way they do with any other prescription drug policies.
If workplaces and the government can implement the recommendations, then we believe any issues with medical marijuana usage will be no different than any other prescription drugs. With recreational marijuana usage, organizations can enforce policies in the same manner as things such as alcohol.
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