Canadian Employment Law Today

Canadian HR Reporter, 2020 February 26, 2020 | Canadian Employment Law Today cannabis use for a medical reason or is it related to a cannabis addiction? Recreational cannabis use on its own would not trigger the duty to accommodate. An employer may prohibit impairment at work from cannabis use that is related to a disability if it would jeopardize health and safety or interfere with the performance of es - sential job duties, as indicated in the Ontario Human Rights Commission's "Policy state- ment on cannabis and the Human Rights Code" published online in July 2018. With respect to implementing accommodations, it is a process for both the employee and the employer to participate to determine appro - priate supports. As a best practice, employers should ensure to maintain an up-to-date ac- commodation policy that explains the pro- cess of accommodation in the workplace. The duty to inquire In some situations, it may be up to the em- ployer to initiate the conversation regarding accommodation where it has reason to believe a disability may be affecting an employee's ability to perform. This is the duty to inquire. For instance, if an employer suspects an em - ployee may be in violation of a drug or alco- hol workplace policy and the use may be due to addiction or other disability, the employer should ask the employee for more informa- tion prior to taking any disciplinary action. In Kerr v. Boehringer Ingelheim (Canada) (No. 4), the B.C. Human Rights Tribunal ex- plained the duty quite clearly: "There is no question that an employee may need to pro- vide medical information to the employer in order for that employee to be accommodat- ed. However, the employer cannot just wait until that information is provided before taking any other steps, as this would always place the burden on the employee." Employers should seek to be proactive in these circumstances, which may require some further education and training for management employees who are tasked with the responsibility of enforcing the policies. The legalization of cannabis is still quite new and organizations and employees are adjusting to the new regime alike. With that adjustment should come the understanding that attitudes regarding its acceptance differ widely and employers should be advised to evaluate the breadth of their drug policies based on the needs of the work environment and not based on personal convictions or bi - ases regarding its appropriateness. When it comes to discipline for off-duty conduct related to cannabis use, it is even more critical to ensure decisions are being guided by clear policy because discipline would only be warranted in situations where there is a repu - tational harm to the employer or the conduct affects the employee's ability to perform their job, such as due to a loss of professional des- ignations, licences or certifications. As a final reminder, the discipline should always be pro- portionate to the conduct. For more information, see: • Labourers' International Union of North America, Local 506 v. Comstock Canada Ltd., 2004 CanLII 28097 (Ont. Lab. Rel. Bd.). • Volchoff v. Wright Auto Sales Inc., 2015 ONSC 8029 (Ont. S.C.J.). • Coupe v. Malone's Restaurant Ltd., 2006 BCSC 1350 (B.C. S.C.). • Kerr v. Boehringer Ingelheim (Canada) (No. 4), 2009 BCHRT 196 (B.C. Human Rights Trib.). If an employer suspects a violation of a drug or alcohol workplace policy is due to addiction or other disability, the employer should ask the employee for more information before taking any disciplinary action. CREDIT: LIFESTYLE DISCOVER SHUTTERSTOCK ABOUT THE AUTHOR Busayo Faderin Busayo Faderin is an associate lawyer at Monkhouse Law where she practices employment, human rights and disability insurance law. Faderin can be reached at busayo.faderin@monkhouselaw.com.

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