Page 36 - Magazine Spring 2019

4
CANNABIS & THE WORKPLACE
BY GUILLERMO SCHIBLE
ECONOMY AND FINANCE
In June 2001, the Cannabis for Medical Purposes Regulations passed under the Controlled Drugs and Substances Act allowed Canadians with a doctor’s authorization to use cannabis for medical reasons. As of October 17, 2018, Canada's Cannabis Act (the “Act”) legalized cannabis for recreational purposes, as well. This has posed new challenges for employers, including persons’ expectation of a workspace free from smoke, and avoiding impairment for legitimate safety reasons.
Health and Safety
Employers regulated under Ontario’s Occupational Health and Safety Act (“OHSA”) must maintain a safe workplace. Naturally, an employer cannot encourage or condone impaired employees in safety-sensitive work areas. But how does an employer control employee impairment? Except in certain industries and very limited circumstances, random drug testing is not allowed in Canada.
Medical Cannabis - Accommodation
Employers regulated under Ontario’s Human Rights Code (the “Code”), and with workers who consume cannabis for medical purposes, must consider accommodation, and provide such accommodation if there is no undue hardship. Employers should not deny “accommodation” (when required) based
on “undue hardship” too quickly, as “undue hardship” carries a high threshold that employers must meet before denying accommodation. For example, employers cannot simply consider the potential health and safety hazards; employers must also consider how these potential health and safety hazards might be avoided, without undue additional supervision, effort and cost.
Recreational Cannabis
Employers, who have not already done so, should establish clear health and safety rules, policies and systems in place, to inform and guide workers regarding the employer’s expectations on recreational cannabis use. For example, does the employer prohibit recreational cannabis consumption prior to, at or around work, and what are the consequences in the event of breach?
Once policies are established and clearly communicated to employees (and to candidates before they are offered a position), progressive discipline, including and up to termination, is at least possible.
Recreational cannabis consumer workers who end up with substance dependency, should be considered similarly to workers who consume cannabis for medical purposes. That is, accommodation until undue hardship must be considered, given the human rights implications.
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THE BEST MAGAZINE SPRING 2019
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