Canadian Employment Law Today

Canadian HR Reporter, 2020 January 29, 2020 | Canadian Employment Law Today own doctor testified that, if he had known the employee's position, he would have pre- scribed a lower dose. While accommodating medical cannabis is a relatively new and evolving area of the law, the guiding principles associated with accommodating an employee's disability and/or prescription drug use while at work are not so. To minimize risk, employers should ensure that they have clear policies related to prescription drug use, including medical cannabis and workplace accommo - dation, and that their employees are prop- erly trained on these policies. Recreational use of cannabis Much like alcohol, the ability to legally use cannabis in general does not provide an employee the right to use it or be under the influence of it while at work. Unless the em - ployee has a prescription for cannabis (see above), an employer can properly prohibit employees from using or being under the in- fluence of cannabis while at work. Expecta- tions regarding any prohibition against using cannabis at work, and the consequences for breaching that prohibition, should clearly be set out in a written policy. at said, a matter can move from disciplinary to medical where an employee is addicted to cannabis. In par - ticular, addiction is deemed to be a disabil- ity under human rights legislation and gives rise to an employer's duty to accommodate. Where an employee claims to be addicted to cannabis, medical inquiries should be made to confirm the addiction and an accommo - dation plan should be developed. is plan, much like those of alcohol or other drug dependencies, generally involves placing the employee on an unpaid medical leave of absence to seek treatment for their addiction and a clear expectation that the employee can only return to work once medically cleared and under strict conditions related to future use. In safety-sensitive positions, an employ - er may be able to terminate an employee who is addicted to cannabis where their cannabis policy clearly provides that employees are obligated to disclose any addiction before a workplace accident/near miss and they fail to do so. In that scenario, the employee's termi - nation would not be related to the cannabis use itself but to the breach of the disclosure provision in the policy. Accommodating cannabis use, whether for medical or recreational purposes, will be primarily a fact-driven process. However, employers who are proactive and respond to accommodation issues objectively, based upon an individual analysis of the medical evidence and the employee's particular cir - cumstances, will be in the best position to deal with cannabis use in the workplace. For more information, see: • International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (N.L. S.C.). • Atchison v. L & L Painting and Decorat- ing Ltd., 2018 HRTO 238 (Ont. Human Rights Trib.). CREDIT: VISIVASTUDIO SHUTTERSTOCK Addiction is deemed to be a disability under human rights legislation and gives rise to an employer's duty to accommodate. ABOUT THE AUTHOR Alexander Kowal Alexander Kowal is a legal advisor with e2r® in Toronto. He can be reached at (416) 867-9155 or akowal@e2rsolutions.com.

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