Canadian Employment Law Today

will not be subject to discipline for doing so. Policies should also provide that a manager or representative of the employer respond to accommodation requests in a formal manner in writing. Policies that encourage self-disclosure can prove to be a useful tool to help prevent accidents and foster trust in the workplace. A precursor to accepting ac - commodation requests is training managers on their intake and processing. at means establishing clear procedures to assess, vali- date and determine which requests can be accommodated. Documenting key details is critical — this process should examine a range of factors including the employee's work-related abilities and limitations, and the potential impact the accommodation will have on workplace safety and produc - tivity. To avoid liability and protect the de- cision ultimately made with respect to any accommodation request, employers need to demonstrate that they have made proce- dural and substantive efforts to assess the employee's disability-related needs in good faith and determine whether they could be accommodated. Even if an employee comes forward with medical documentation indicating a need to use medical cannabis, employers are free to request additional information as part of their accommodation obligations. It is with - in an employer's right to seek information regarding any work-related limitations that may be caused by an employee's use of med- ical cannabis or their disability, the quan- tity and dosage of medical cannabis that an employee has been prescribed for work use, and when and how often they need to consume it. e objective is to determine how that usage could reasonably impact the workplace and the business prospects of the organization. If yours is a safety-sensitive environment, it may be possible to make drug testing a pre-requisite of employment, while also requiring drug tests for individu - als who may have been involved in a work- place accident where they were suspected of being under the influence. Assistance, not discipline When employees come forward and dis- close an addiction or substance abuse issue, they should not be disciplined for drug use relating to their addiction. Your organization should establish a process for helping individuals access addiction counselling, taking a medical leave from work if necessary, and ensure their return is subject to ongoing rehabilitation or medical clearance confirming their ability to work. Overall, the process must not be punitive; the goal is to help the addicted employee recover and create the safest workplace possible. For organizations who do not operate in safety-sensitive environments, demonstrat- ing undue hardship stemming from the ac- commodation of medical cannabis can be far more challenging. If, for example, an employee that uses prescribed pot liaises directly with clients who raise their discom - fort with the individual's apparent intoxi- cation during meetings — which can then be directly tied to a loss of business for the organization — a case could be made that permitting the cannabis use would consti - tute undue hardship. However, demonstrat- ing a financial or operational impact in a situation such as this can be extraordinarily difficult. In such a situation, the best prac- tice would be to work with the employee and their treating physician to establish clear ground rules that work for both par- ties regarding the amount of cannabis the employee needs to consume in a day, how and even when it can be consumed, and un- der what circumstances. Perhaps most importantly, employers should note that accommodation is a two- way street that always requires compromise on both sides. It's also a process not to be taken lightly — especially at a time when human rights and employment standards legislation are strengthening protections for workers with disabilities and addictions. Given that we are in the era of cannabis legalization in Canada, employers need to evaluate their workplace policies and pro - cedures and ensure they are prepared to meet their duty to accommodate as it per- tains to medical cannabis. For more information see: •Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (Ont. Human Rights Trib.). Canadian HR Reporter, a Thomson Reuters business 2019 January 23, 2019 | Canadian Employment Law Today CREDIT: FLAPAS/SHUTTERSTOCK ABOUT THE AUTHOR Seth Holland Seth Holland is a lawyer at Williams HR Law in Markham, Ont., where he practices in all areas of management-side labour, employment, and human rights law.

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