Canadian Employment Law Today

Accommodation after legalization Legalization of cannabis hasn't changed employers' duty to accommodate medical version of the drug BY SETH HOLLAND T he legalization of recreational cannabis this past October raised major alarm bells for some Canadian employers. More than a few CEOs and HR managers were concerned that legal pot would dra- matically spike risk exposures and leave their organizations stumbling through a treacherous minefield of legal and or- ganizational challenges ranging from workplace safety exposures to potential declines in productivity. While the sample size is undoubtedly small, there has been no indication that the legalization of recreational cannabis has created major issues for employers. While many employers are still working to amend their workplace policies and procedures to adjust to this new era of legalization, it's largely been business as usual for most or - ganizations as it pertains to the use of rec- reational cannabis. e more challenging issue remains accommodating the use of medical cannabis in the workplace, an issue that employers have been dealing with long before the legalization of recreational cannabis in Canada. Accommodation is of particular concern to employers operating in safety- sensitive work environments, such as manufacturers, construction and energy firms, and healthcare providers, where an employee who is under the influence of cannabis has the potential to do serious harm to herself and other persons in the workplace. Employers are prohibited from discrimi - nating against employees on the basis of disability in every province and territory in Canada and, in most circumstances, are required to accommodate employees with disabilities to the point of undue hardship. According to Health Canada, more than 296,000 Canadians carry medical canna - bis prescriptions to treat conditions such as glaucoma or chronic pain, and many require some form of workplace accom- modation. Balance between safe workplace and accommodation is presents a challenge for employers, who have a duty to provide a safe work- ing environment — in Ontario, for ex- ample, that requirement is enshrined in the province's Occupational Health and Safety Act, 1990 — while also accommo- dating employee disabilities and medical needs to the point of undue hardship. If you have reason to believe that an em- ployee requires the use of medical canna- bis at work, or suffers from an addiction —which is recognized as a "disability" under Ontario human rights legislation — your organization has a duty to ac- commodate. Notably, an employee can- not be disciplined or terminated because she suffers from an addiction or disability that requires the use of medical cannabis. As such, employers must walk a difficult tightrope, balancing accommodation re- quirements and any risks to their organi- zation that stems from the use of medical cannabis in the workplace. ose who take a proactive approach to workplace policy design and implementation, however, often find the process far easier to manage, par - ticularly when it comes to accommodating medical cannabis usage. Employers who adopt a proactive approach often come to better understand the accommodation pro - cess as it applies to their workplace and get a better sense of what types of disabilities and work-related limitations they have the capacity to accommodate. Despite the recent legalization of recre - ational cannabis, employers should note that Ontario's Smoke-Free Ontario Act, 2017, prohibits the smoking of cannabis in an enclosed workplace, and that employ - ers can expressly prohibit the consump- tion of cannabis in the workplace, except in cases where medical accommodation is required. However, employees do not have an absolute right to use medical cannabis in the workplace. is point was recently confirmed by the Ontario Human Rights Tribunal in a 2018 decision, Aitchison v. L & L Painting and Decorating Ltd. Employees have an obligation to make their need for accommodation known to their employer, and employees who use cannabis at work without first advising their employer of any medical need to do so may be subject to discipline or even termination. Where employers become aware of an employee's accommodation needs related to medical cannabis, they are legally re - quired to accommodate the employee to the point of undue hardship. e undue hard- ship analysis implies that at a certain point, some measures of accommodation are not practical for employers to maintain and would constitute an undue burden on the employer's ability to run its business. Em - ployers can demonstrate undue hardship by showing that the proposed accommodation is likely to cause them financial harm, that it would require outside financing, or that the accommodation could create health and safety risks in the workplace. While factors are always weighed on a case-by-case basis, employers could reasonably argue undue hardship if the proposed accommodation impacts the quality production of goods or the effective delivery of services. No matter the situation, employers must have valid workplace drug and alcohol poli - cies in place that include coverage of legal and illegal substances, such as cannabis or alcohol, that can have an intoxicating ef- fect that could potentially impair an em- ployee's ability to safely perform workplace duties. e Supreme Court of Canada has endorsed an employer's right to proactively implement and enforce workplace drug and alcohol policies where the purpose is to maintain a safe work environment and pre - vent workplace accidents. Employers are entitled to prohibit the use of recreational cannabis at work and attending work while under the influence. ey can also require that employees disclose addiction issues pri - or to workplace accidents. Employers may impose sanctions up to and including termi- nation in the event of a policy violation. But simply having tough policies isn't enough. Workplace drug and alcohol poli- cies must also be legally-enforceable and drafted in way that protects organizations from unnecessary legal risk and claims of discrimination. Policies should encourage employees to come forward with accom - modation requests and assure that they 4 Canadian HR Reporter, a Thomson Reuters business 2019 CASE IN POINT: ACCOMMODATION IT'S NOW a few months into the era of legal cannabis in Canada. It's still too early in the game to see what some of the effects might be — including for employers concerned with both employee impairment or use of medical marijuana. However, employees who do have prescriptions for the drug due to a disability should be accommodated, regardless of its legalization for recreational use. BACKGROUND

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