Canadian Employment Law Today

Canadian HR Reporter, 2019 IT'S NOW BEEN more than half a year since marijuana was legalized in Canada. Things are still in flux as consumers and jurisdictions adapt to the new reality. Employment lawyer Nathaniel Marshall reviews the key issues for employers to keep in mind in this era of employees having legal access to another impairing substance. Avoiding the lows of employees getting high Employers must balance the rights of employees and their own concerns about health and safety and productivity in the era of legal marijuana BY NATHANIEL MARSHALL A s all employers should now be aware, the green rush is here. As a result of the federal gov- ernment bringing the Cannabis Act, 2018 into force, the cultivation, pos- session, acquisition and consumption of marijuana for recreational purposes has been legal in Canada since October 2018. e models for purchasing legal marijuana vary by province and, as of April 1, 2019, licensed retail stores can now operate in Ontario. Given the ease with which em- ployees can now purchase and consume recreational marijuana, employers should ensure that they have effective policies in place which address the potential risks and limitations on marijuana in the workplace. is article will provide employers with a brief overview of the law regarding mari- juana in the workplace, as it is a topic that will surely become increasingly prominent in the coming months. It's really about impairment Notwithstanding the legalization of rec- reational marijuana is a recent phenom- enon, when we express concerns about marijuana use in the workplace (or prior to attending at work), what we are really talking about is impairment. In this re- gard, employees have an obligation to at- tend work fit for duty and free from im- pairment. is is the case regardless of the substance. Consider, for example, alcohol. Even though alcohol has been legally avail- able to purchase for decades, employees are not permitted to attend work under its influence. Subject to potential issues surrounding the duty to accommodate, as discussed below, employees are not permitted to attend work while under the influence of marijuana. Instead, it is the employees' duty to ensure that they show up for work, ready to perform their job du- ties safely and competently. In terms of addressing marijuana in the workplace, employers should outline in a policy, in the same manner they do for oth- er substances, that employees are prohib- ited from attending work while impaired. Employers should also make employees aware that, absent any potential human rights issues, they may be subject to pro- gressive discipline up to and including ter- mination for breaching the policy. Off-duty use of marijuana While the law is clear that an employer can and should prohibit employees from being impaired by marijuana while in the workplace, an employer's ability to regu- late off-duty use of the drug is less clear. Employers should be cognizant not to adopt knee-jerk, overbroad or unreason- able policies that unnecessarily intrude into employees' personal affairs. Doing so is detrimental to workplace morale and it may also produce unforeseen legal risk. Unless the employee occupies a safety- sensitive position, employers generally should not concern themselves with their employees' off-duty behaviour as it per- tains to substance use. Drug testing Although there has been very limited scru- tiny of policies that regulate off-duty use of marijuana given the short time in which recreational marijuana has been legal, courts have been clear for some time about an employer's limits to test employees for drugs and alcohol in the workplace. As a starting point, employers must balance workplace safety and employee privacy. As courts and arbitrators have repeatedly noted, this is no easy task. As noted above, employees are not permitted to be impaired in the workplace. erefore, where the employer believes an employee in a safety-sensitive position is impaired at work, testing of that employee may be permitted where just cause exists to do so (i.e. the employee was observed smoking marijuana). On-the-spot testing may also be permitted as a part of a return-to-work program following a course of treatment. With respect to random drug testing, the jurisprudence states that employers are not typically permitted to conduct it in the workplace. Further, in unionized environ- ments, most collective agreements pro- hibit random testing and in non-unionized environments, random testing policies almost always run afoul of the applicable human rights legislation. erefore, in or- der to justify a random testing policy, an employer will need to demonstrate that the employees who are subject to the test- ing occupy safety-sensitive positions and there are enhanced safety risks in those po- sitions, including a general problem with substance abuse in the workplace. e law continues to evolve in the area of drug and alcohol testing, and decisions are usually fact-specific. As a result, employers must proceed with caution when imple- menting any form of marijuana testing in the workplace, as it will only be found to be permissible in limited circumstances. Accommodating medical marijuana in the workplace Pursuant to provincial and federal human rights legislation, employers are required to ensure their workplace is free from discrimination on the basis of disability. Consequently, employers have a duty to accommodate an employee's disability to the point of undue hardship. Determining what constitutes undue hardship will de- pend on the particular facts of each situa- tion and the characteristics of the particu- lar workplace. However, there are general principles that employers should consider when faced with accommodating the use of medical marijuana. Employers should start from the propo- sition that they are obligated to accom- modate medical marijuana in the same way that they accommodate employees who use other prescription medicine. First, employers must consider whether the employee, who has a corresponding duty to participate in the process of find- ing reasonable accommodation, has pro- vided sufficient information regarding the accommodation they need. Once the em- 4 CASE IN POINT: MARIJUANA IN THE WORKPLACE BACKGROUND

• Cover