Cannabis in the Workplace: Employers’ Rights Won’t Go up in Smoke

By Laura Williams

In just a handful of days, it will be entirely legal for Canadians to use marijuana. That’s great news if you enjoy “getting baked”, but less so if you’re an employer because many organizations are still struggling to understand the potential impact of pot on their workplace.

Now, we can safely assume that cannabis legalization won’t result in reefer madness across the workplaces of Canada’s not-for-profit associations. A Statistics Canada survey conducted earlier this year found that 79 percent of Canadians would be no more likely to try pot, or increase their consumption, after legalization takes effect.

The other piece of good news: recreational marijuana legalization will have a negligible impact on the vast majority of employers, particularly if they pay proactive attention from an employment law perspective. The reality is that organizations have been required to accommodate medicinal marijuana in the workplace for years. The difference now is that people can use cannabis for recreational purposes rather than solely in the medical context. That’s a major distinction, but one that can be managed by implementing and consistently applying effective workplace policies that help mitigate risk.

Of course, your organization may already have policies that address workplace drug and alcohol use—highlighting the fact that employees aren’t allowed to crack open a cold one in the middle of the office, for example. If they don’t address drug use already, those policies should be expanded to cover marijuana. That’s a necessary step, even though Ontario’s Cannabis Act, 2017, states that no person shall consume cannabis in a workplace—with penalties of up to $5,000 for breaking the law. Policies should explicitly state that your organization will respect medical requirements to use the drug, while prohibiting recreational use at work and differentiating among employees with legitimate medical reasons to use cannabis, those with addictions to that and other drugs—which would qualify as a disability under human rights legislation—and recreational users.

Here’s where the key distinction between recreational and medical marijuana comes into play. In provinces such as Ontario, employers are required to accommodate employee disabilities to the point of undue hardship—or the point at which doing so has a severe negative impact on their business that outweighs the benefits of accommodation, which is a high threshold to meet. Health Canada estimates that nearly half a million Canadians will use cannabis for medical reasons by 2024. An employee suffering from chronic pain, for example, could obtain a prescription for medicinal marijuana and request accommodation by their employer. This obligation has existed for some time and will not change with the legalization of recreational cannabis. But remember that just as an employee’s accommodation request must be taken in good faith, employers are not necessarily required to accommodate every such request.

That’s because the duty to accommodate—even in a medical context—is limited where the accommodation would cause an employer undue hardship, such as by negatively impacting workplace safety. If your association represents manufacturers, for example, they should consider preparing a workplace risk assessment, analyzing the extent to which the presence of an impaired employee would pose a threat to their own safety, their co-workers, or the organization. If impairment would render an employee unable to perform a bona fide occupational requirement—such as operating a forklift—then accommodation may not be possible.

Policies should also affirm the employer’s right to confirm whether marijuana use is medically necessary by obtaining prognosis information from the employee’s doctor. Reasonable questions include the employee’s medical limitations, the amount of marijuana they need to smoke or consume to relieve their symptoms, and when they need to consume it. Case in point: we dealt with a recent incident where an employee asserted the need to use medical marijuana in the workplace, a prescribed treatment that was confirmed by her doctor. However, medical information from the doctor revealed that medical marijuana was prescribed to treat insomnia—since the employee was a day-shift worker in a safety-sensitive environment, her employer took the position that it was not required to accommodate due to safety concerns.

When accommodation requests do arise, employers should respond promptly and in writing (the more documentation the better), while managers—who should be trained to assess and process those requests, including identifying drug impairment—can gather added information outlining how accommodating an employee’s marijuana use will impact everything from workplace safety to productivity. The goal here is to demonstrate that all reasonable efforts have been taken to work with the employee and, if the requests are extraordinary, that accommodation would place an undue burden on the organization. It’s even possible to include regular drug testing as a condition of employment in safety-sensitive environments, if that requirement is properly outlined in an employment contract and policies.

It’s important to also note that organizations can draft policies requiring employees performing safety-sensitive work to come forward to declare their addictions, at which point the employer would be required to provide reasonable accommodation that could include addiction counselling, leave from work and other tools to aid in the worker’s rehabilitation. Conversely, a failure to come forward and declare an addiction would be a violation of workplace policies and would be subject to discipline.

While it is important to note the obligations employers have to accommodate medical and addicted cannabis users, the key takeaway here is that, as an employer, you are not required to accommodate recreational marijuana users in any way. But you do need to act now and put policies in place that set parameters around workplace use of cannabis and which specifically prohibit impairment related to recreational use. The last thing any executive wants for their association or its members is to see a court case go up in smoke because they didn’t take the necessary steps to avoid entirely preventable pot-related risks.

Laura Williams, Founder and Principal, Williams HR Law Professional Corporation | Labour & Employment Lawyers for Employers can be reached at E-mail: [email protected]
Phone: 905-205-0496 ext. 226