Canada: How do employers accommodate cannabis in the workplace?

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Legal recreational cannabis coming into effect in Canada has left a lot of employers feeling unprepared with how to deal with employees using marijuana at work.

Lorenzo Lisi and David Reiter, Partners at Aird & Berlis LLP spoke at the O’Cannabiz Conference and Expo in Toronto last week in a panel called Cannabis in the Workplace: Policies, Planning to Avoid Liability and Industry Stigma. The discussion provided insight on how to manage cannabis consumption in the workplace and how to accommodate those who require cannabis for medical use.

Ultimately, the consensus was that employers shouldn’t stress about legalization and that as long as the employer has a sufficient drug policy in place and takes preventative measures against accidents, the workplace can remain a safe environment.

Legal recreational cannabis is unlikely to encourage more people to show to up to work high. Similar to the way alcohol is prohibited at work.

“Employers and businesses need to understand that the process is not that much different to the way alcohol is treated in the workplace,” said Lisi. “Employees aren’t going to be allowed to smoke whenever they want just because it’s legal recreationally.”

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Employers can take solace in knowing that employees cannot simply show up to work high, or think it’s acceptable to consume cannabis recreationally in the workplace. There are measures to be taken to ensure that those who truly need it are accommodated and that the workplace remains a safe place for all of its employees.

In 2000, Ontario’s Court of Appeal ruled that a total prohibition on marijuana infringed on an individual’s Charter rights. Now, an employer has a legal duty to accommodate as imposed by the Canadian Human Rights Act and case law if an employee requires cannabis for medical purposes.

As it stands, accommodation may be required if the use of medical cannabis is being used as an authorized medical treatment or if the use of marijuana is an addiction. Again, this doesn’t mean employees are free to use cannabis at work as they please; an employee who uses medical cannabis is required to provide sufficient information to substantiate their limitations and restrictions as well as the impact on his or her ability to perform work functions.

Employers are also only required to accommodate to the point of undue hardship, meaning that if the action requires significant difficulty or expense, the employer is not obligated to accommodate. Factors taken into consideration when determining undue hardship can include cost, outside sources of funding, and health and safety requirements.

“Safety trumps everything else,” said Lisi. “You’ll be in a lot more trouble if something happens on your watch because an employee was using cannabis and unable to perform their job safely.”

If the employee’s cannabis use is a result of an addiction and they have not been authorized by a health care provider to use cannabis as a medical treatment, the employer is legally obligated to accommodate similarly to any other substance abuse scenario, which can involve time for and attendance at addiction treatment. The employer does not have to accommodate by allowing the employee to use cannabis at work.

An employer can fulfill their duty to accommodate by first getting the information they need from the employee including a medical note or report that answer the following questions:

  • When and how often they need to use the product
  • Will they need to use the product at work?
  • In what form must the product be taken?
  • Where will they take the product if needs to be taken at work
  • How long do they anticipate they will need to take the product
  • What are the side effects and restrictions when using the product and for how long

Answers to these questions can help the employer assess if medical cannabis will affect the employee’s ability to perform the duties required for their job and how duties could be modified to accommodate the employee’s needs. Sometimes this accommodation may require the employee to perform an entirely different job.

An employer can say “no” to cannabis use even for medical reasons in the following scenarios:

  • Health and safety to the employee and other employees is jeopardized
  • Bona fide requirements of the position are not being met
  • Use is at the point of undue hardship.

It’s unlikely that much will change in the workplace once cannabis is legalized recreationally in Canada. Taking preventative measures before accidents happen and allowing medical users to be open about their treatment should help to ensure employees are safe and the company has carried out its obligations properly.

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