Canadian HR Reporter

CANADIAN HR REPORTER DECEMBER 2019 NEWS 5 3 Cannabis at work One year after legalization, what do we know? A year into legalized recreational cannabis, and now with the legalization of cannabis edibles on Oct. 17, 2019, employers con- tinue to wrestle with the question of how to strike the right balance between a safe and productive workplace and the pri- vacy and human rights of workers. As courts and arbitrators continue to clarify (and in some cases, muddy) the law, there are several things we know: Cannabis in the workplace is no different than any other po- tentially impairing drug: e overarching question is whether the worker is fit for duty. ere is no duty to accom- modate recreational cannabis use: An employer has no duty to accommodate recreational cannabis use and may enforce restrictions including a no tol- erance policy at the workplace (subject to the duty to accom- modate, discussed below). ere is a duty to accommo- date a substance use disorder (such as addiction to cannabis) or a disability requiring the authorized use of medical can- nabis: Under human rights law, an employer has a duty to accom- modate the use of medical canna- bis, or a worker with a substance use disorder, to the point of un- due hardship to the employer. What constitutes undue hard- ship depends on the circum- stances of the business. However, we know that cost is rarely con- sidered sufficient undue hard- ship, whereas health and safety considerations often are (more about this below). The duty to accommodate must be balanced against the duty to protect workers: Under health and safety law, an employ- er has a duty to take all reasonable precautions to protect workers. If an employer has a legitimate concern for the safety of others or for the business, the employer can impose restrictions on the use of cannabis, even if used for medical purposes. In the recent decision Aitchison v. L & L Paint- ing and Decorating Ltd., 2018 HRTO 238, the Ontario Human Rights Tribunal held there is no "absolute right" to use cannabis at work even if it has been medi- cally authorized. The worker, a painter who worked on a swing stage some 37 floors high, consumed medi- cal cannabis at work for chronic pain. He did not disclose this to his employer and his termination was upheld because the employ- er had a zero-tolerance policy for drugs and alcohol, of which the worker was aware, and there was a legitimate safety concern which took precedent over the worker's medical condition. An employer can require a worker in a safety-sensitive position to proactively self- disclose the use of medically authorized or recreational drugs (even in the case of sub- stance use disorder): In a well- known decision, affirmed by the Supreme Court of Canada (Stew- art v. Elk Valley Coal Corp., 2017 SCC 30), the termination of a worker in a safety-sensitive posi- tion was upheld not because the worker was found to have been unfit for duty (the worker had a substance use disorder disclosed only after a workplace accident) but because he breached the workplace policy that required proactive self-disclosure. e employer's drug and alco- hol policy required workers to proactively disclose drug depen- dency without fear of discipline or termination, with the promise of rehabilitation assistance. However, if a worker did not disclose until after an incident or positive test, the worker would not be shielded from discipline or termination. Central to the decision was the court's view that addiction does not necessar- ily mean the inability to comply with a company policy. Drug and alcohol testing of a worker in a safety-sensitive po- sition is permissible in certain circumstances: • Random drug and alcohol test- ing is only permissible as a com- ponent of a broader policy to address drug and alcohol use in a dangerous workplace shown to have a general drug and al- cohol problem. JOINT VENTURE BY: Sundeep Gokhale and omas Gorsky Legal View Notable cases International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (N.L. S.C.). An employee was found to have been properly terminated for failing to reveal his possession and use of medical marijuana in contravention of a construction project's Drug and Alcohol Standard, which required employees to "report any medication being taken… (that) may impair the employee's ability to work safely." The Canadian model required workers to report to a supervisor the use of any drugs with potential unsafe side effects. There was no evidence the employee had been impaired at work but he denied the employer the ability to evaluate whether there was an actual adverse effect based on the level of THC in his system during his shift. Had the employee disclosed his marijuana use, the employer could have made arrangements to test him or to obtain a medical opinion on potential adverse effects. The arbitrator's decision was upheld by the Newfoundland and Labrador Supreme Court. North American Palladium and USW (Waldon), Re, 2018 Carswell Ont 9422 (Ont. Arb.). A miner in northern Ontario said he had a marijuana problem after failing a post-incident drug test. He went to rehab and returned to work under a last-chance agreement, but tested positive for cocaine on his first day back and was fired. The worker said after his rehab, a family member who used cocaine stayed at his house, which led to him using the drug. The arbitrator acknowledged the worker had "a serious drug abuse habit" which he had some success treating before he returned to work. The worker wasn't honest about his cocaine use, but he was open about his use of marijuana. It's likely that "having a regular job could be a central feature in the (worker's) efforts to establish a new drug-free life for himself," said the arbitrator, in ordering him reinstated with strict conditions for rehab and treatment. ENFORCE> pg.9 1 3 2 5 3 4 in in in Number of workers in Canada who think that if they have disclosed they have a medical cannabis licence, they can consume cannabis during work hours. Number of managers in Canada who think employers don't have a duty to accommodate medical cannabis use. Number of managers who believe that a company can implement a random drug testing policy at work if it's approved by the CEO. Source: Responsible Cannabis Use Cannabis use in the past months 20.3% MALES 14% FEMALES Source: Statistics Canada 22% Number of employers with 100 to 499 employees that have experienced a cannabis-related incident in the workplace since legalization. 34% Number of employers that do not have a drug and alcohol policy in place. Source: CFIB sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738 At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent Murphy's Law tomorrow. From human rights to health and safety, and everything in between…

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