On October 17, 2018, recreational use of marijuana will be legalized in Canada, which is raising several unique challenges for employers. According to a new report by the Conference Board of Canada, more than half of all Canadian organizations are either concerned or very concerned about the upcoming legalization. As such, employers are frequently asking the following questions:
- Can an employee use cannabis at work?
- How will cannabis use impact workplace safety?
- Do employers have a duty to accommodate an employee’s use of marijuana and, if so, what are the requirements for reasonable accommodation?
These questions recognize the ambiguity in this new law but there are certain precautionary measures employers can implement to ensure workplace safety while also recognizing an employee’s right to medical usage of marijuana and reasonable accommodation.
First, if you do not have an employment policy in place, now is the time to implement one. Similarly, employers with an existing policy will need to ensure their policies and procedures are now in compliance with the new law.
Moreover, employers will need to understand the distinction and concomitant obligations between an employee’s recreational use of marijuana and an employee’s medically prescribed marijuana usage. For example, employers may treat use of recreational marijuana the same way they treat alcohol use. Like alcohol consumption, recreational use of marijuana at the workplace may be prohibited.
In contrast, use of medical marijuana by an employee involves significant human rights considerations, particularly when the employee has a prescription and their usage is for treatment of a medical condition that constitutes a “disability.” Employers will continue to have a legal obligation to provide reasonable accommodation for medical use of marijuana, similar to other types of prescription medication. However, what constitutes reasonable accommodation and to what extent an employer must make efforts to assist the employee will be determined on a case by case basis.
Nonetheless, an employer may still limit an employee using medical marijuana from being impaired at work or engaging in any conduct that impacts their safety and the safety of other employees. For instance, pursuant to Occupational Health and Safety Act (“OHS”) Regulation impairment at work may be prohibited, as follows:
4.19 Physical or mental impairment
(1) A worker with a physical or mental impairment which may affect the worker’s ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else.
4.20 Impairment by alcohol, drug or other substance
(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
Another issue will be how to test impairment, since there is no agreed-upon reliable testing mechanism for current impairment of marijuana.
In a recent decision, Lower Churchill Transmission Construction Employer’s Association v. IBEW, Local 1620, an arbitrator dismissed an employee’s claim after he was rejected for employment in a safety sensitive role due to his medical marijuana use for osteoarthritis and Crohn’s Disease. What was interesting about this case was that the employee had a valid prescription and stated that he only used the drug in the evenings.
The employee’s union took the position that the employer failed to reasonably accommodate his employment. In contrast, the employer claimed that such accommodation would constitute an undue hardship and would contravene the employer’s duty to provide a safe workplace. Furthermore, the employer asserted that it would be too difficult to accurately measure the employee’s impairment at work.
Despite the employee’s own doctor testifying that he would not be impaired at work if his use was limited to the evenings, the arbitrator held that the employer’s conduct was justified. In his decision, the Arbitrator stated:
“I am satisfied that the lack of reasonable ability to measure impairment in persons using cannabis – blood and urine tests do not measure current impairment plus the lack of specially trained individuals who can observe and measure impairment in one’s judgment, motor skills and mental capacity – presents a risk of harm that cannot be readily mitigated.
The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.”
This is an important decision for employers, particularly in safety sensitive occupations. Nevertheless, this is a new development in law so employers should contact an employment lawyer to understand the latest requirements in order to avoid disputes before they arise.
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