On October 17, 2018 cannabis was legalized under the Cannabis Act, S.C. 2018, c. 16. The significant changes to the legality of cannabis raises new questions and challenges for Canadian employers.
Accommodation of Medical/Disability related Cannabis Use
The Ontario Human Rights Commission has released a policy statement on cannabis and the Ontario’s Human Rights Code, R.S.O. 1990, c. H. 19 (“Code”). The policy notes that, like alcohol and other drugs, employers can generally expect employees to be free from cannabis impairment while at work. That said, employers have a duty under the Code to accommodate employees’ disability-related needs. This may include cannabis use as treatment for another illness/injury or an addiction to marijuana (or other drugs).
Generally, employees have a duty to disclose their accommodation needs to their employer. However, constructive knowledge can be attributed to an employer who should have known that an employee was suffering from mental illness and/or addiction (i.e. disability). Employers have a duty to inquire about the potential need for accommodation where they have reason to believe that a disability is affecting an employee’s ability to work.
Employees are required to participate in the accommodation process and should provide his or her employer with reasonable accommodation suggestions/requests that are supported by medical documentation.
If an employee provides his or her employer with medical documentation regarding a disability that is affecting his or her work, the Code imposes an obligation on employers to accommodate up to the point of undue hardship.
Employers should implement workplace policies that include explicit language to indicate that the policy promotes safety and encourages employees to disclose addiction/substance abuse issues without fear of reprisal or discipline. Employers should provide for and set out a process for employees to ask for and obtain treatment and/or reasonable accommodations in the workplace. Employers will want to avoid a “zero tolerance” based policy which does not consider medical cannabis use and accommodation issues.
Recreational Cannabis Use & Discipline
Recreational cannabis users do not hold any rights under Ontario’s Human Rights Code. Employers are free to limit or restrict recreational use of marijuana and prohibit impairment at work (similar to alcohol).
Employers may discipline employees who engage in recreational cannabis use at work and/or those who attend work impaired. Employers should aim to provide a fair and proportionate response to workplace impairment which depends on the level of impairment and the impact on the workplace. What is a proportionate response will depend on the context of the workplace.
Although even minor workplace impairment may justify some discipline, conduct that supports a finding of cause for termination will be rare. Further, to justify discipline for employee use of drugs or alcohol outside of the workplace, there must be some impact on the workplace or employer.
Before disciplining an employee for cannabis (or other drug) use, an employer should take positive steps to investigate whether the misconduct is causally connected to a disability and consider whether the employer’s duty to accommodate is engaged.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.