Canadian Employment Law Today

Canadian HR Reporter, 2020 4 CASE IN POINT: CANNABIS IN THE WORKPLACE Weed at work: 1 year later Increase in cannabis users after legalization means employers should have solid policies and practices in place to address employees' use of the drug BY ALEXANDER KOWAL I t has been a little more than one year since the federal government's Can- nabis Act came into force, legalizing the recreational use of cannabis in Canada. In the immediate aftermath of le- galization, first-time cannabis users nearly doubled. According to Statistics Canada's National Cannabis Survey, first-time us- ers in the first quarter of 2018 numbered 327,000 compared to 646,000 first-time users in the first quarter of 2019. Perhaps most troubling for employers is that the National Cannabis Survey also revealed that an estimated 500,000 workers admit- ted to using cannabis before heading to work or while at work. Given the apparent increase in cannabis users since legalization and the fact that a significant percentage of employees are ei- ther under the influence of cannabis and/ or using cannabis while at work, it is impor- tant to revisit the legal framework and best practices as it relates to cannabis use. Cannabis use falls into two sometimes overlapping categories — medical use and recreational use — and both types of use can give rise to human rights considerations. Medical use of cannabis Cannabis for medicinal purposes has been legal since 2001. Since that time, employees who have been prescribed medical canna- bis have been entitled to be accommodated in the same manner as any other employee who has been prescribed medication. at said, an employee with a prescription for medical cannabis does not have an unfet - tered right to use cannabis while at work. Even with a prescription, an employee is not entitled to: • Compromise their own safety or the safety of others • Be impaired at work • Have unexcused absences • Smoke cannabis in the workplace. When an employer is presented with a medical cannabis prescription and a re - quest to use cannabis at work, the employ- er's first step should be to request informa- tion from the employee's physician. e information requested should be limited to what is reasonably necessary to assess the employer's accommodation obligations and may include: • Confirmation that the cannabis needs to be consumed during working hours; • How often the cannabis needs to be con - sumed; • Where the cannabis will be consumed, if being consumed during working hours; • How long the cannabis must be used; • Whether there are side effects, and if so, what those side effects are and their duration. Once this information is received, an employer will have to assess its accommo - dation obligations. ese accommodations will be similar to accommodations pro- vided to other disabled employees and can include providing more frequent breaks (to allow for consumption), altering an employee's duties, altering an employee's schedule and moving an employee out of a safety-sensitive position (if possible). e duty to accommodate ends if the employee cannot perform the essential duties of their job, with or without accommodation, or if undue hardship is established. As it relates to workplace safety and ac - commodation in particular, the Newfound- land and Labrador Supreme Court decision in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' As - sociation Inc. is particularly instructive. In that case, an employee disclosed his use of medical cannabis and was denied employ- ment on the Lower Churchill Transmission Construction Project as a result. e em- ployer had concerns regarding the potential for impairment in the performance of safe- ty-sensitive duties. A grievance was filed on the basis that the decision to refuse the employee the work was discriminatory. In both the arbitration and the judicial review application, it was held that undue hardship would arise if the employee was allowed to work. In particular, because the employer could not reasonably determine how long the employee remained impaired for after consuming cannabis nor any reasonable means to test for impairment, it could not reasonably manage the safety risk posed by the employee's consumption. e union's argument that the employer had to employ the employee unless it could demonstrate impairment was rejected by both the arbi - trator and the court. Instead, once possible impairment was raised, the employer was reasonably entitled to medical information that clearly demonstrated the employee was able to work safely. Employees also likely owe an obligation to seek accommodation from their em - ployers to use cannabis at work for medical purposes, especially where the employee is in a safety-sensitive position and where the employer has a policy prohibiting use. In Atchison v. L & L Painting and Decorating Ltd., an employee was terminated for smok - ing cannabis at work during his breaks, con- trary to the employer's policy prohibiting cannabis smoking on the job. e employee was a painter who worked on high-rise buildings and, therefore, his position was considered safety sensitive. In finding the termination to be non-discriminatory, the Human Rights Tribunal of Ontario (HRTO) confirmed that, although the employee had a medical certificate permitting cannabis use for medical purposes, he never provided the certificate to his employer or requested accommodation. His failure to do so while still using cannabis at work, contrary to the employer's policy, represented a genuine health and safety risk. In finding that the employer's policy was not discriminatory, the HRTO noted that its prohibition against the use of cannabis at work was bona fide and reasonable and that the policy did not impose automatic termination or close the door on accommodating employees who used medical cannabis in a non-safety-sen - sitive position. Interestingly, the employee's An employee with a prescription for medical cannabis does not have an unfettered right to use cannabis while at work. SINCE RECREATIONAL cannabis use was legalized in Canada in October 2018, use of the drug has unsurprisingly increased, particularly by first-time users who decided to try the drug now that it's legal. Leading up to legalization, many employers were concerned about the effects it could have on the workplace — especially those with safety- sensitive workplaces. Legal advisor Alexander Kowal looks at the past year-plus of legalized marijuana and the strategies employers can take to protect their workplaces. BACKGROUND

• Cover