Canada: Accommodating The Use Of Cannabis In The Workplace

Last Updated: February 13 2018
Article by Jon Danyliw

The Canadian government introduced Bill C-45, also known as the Cannabis Act, in the House of Commons on April 13, 2017 and has indicated it intends to bring the legislation into force no later than July, 2018. The Cannabis Act will allow adults to legally possess, grow and purchase limited amounts of cannabis for personal use.

Cannabis use has been shown to impair psychomotor skills and judgment.  It has the potential to impact job performance, and is especially worrisome for employers with safety sensitive work environments or where employees operate motor vehicles in the course of their duties.

The mind-altering substance in cannabis, tetrahydrocannabinol or THC, can remain in the body long after use. Unlike alcohol, current testing methods only determine the presence of THC but cannot accurately measure impairment.

Notwithstanding potential legalization of cannabis, employers will continue to have the right to prohibit the possession and use of cannabis at the workplace and to prohibit employees from attending work while impaired. The use of cannabis may be treated in much the same way as alcohol under employers' Drug and Alcohol Policies. Employees who violate these policies can be subject to discipline, up to and including termination of employment in appropriate circumstances.

While employer policies prohibiting use of cannabis and cannabis impairment are justified, an employer's duty to accommodate disabilities under human rights legislation means that in certain circumstances the employer may have to consider cannabis use from a different perspective.

The Employer's Duty To Accommodate

The Saskatchewan Human Rights Code prohibits discrimination in employment based on a number of enumerated grounds, including on the basis of disability. Where an employer becomes aware that an employee suffers from a disability, the employer must accommodate the employee to the point of "undue hardship".

There are two ways the duty to accommodate may arise with respect to cannabis.  Employers have a duty to accommodate the use of cannabis, with proper medical authorization, as a treatment or to ease symptoms of a disability.  The duty to accommodate may also arise where addiction to or dependency on cannabis is the disability.

Accommodation of Employees Authorized to use Cannabis

Recent human rights tribunal decisions indicate the duty to accommodate use of cannabis as a treatment for a disability arises only where an employee has obtained proper medical authorization.

Having obtained appropriate authorization does not simply entitle an employee to use cannabis at work or to attend work while under its influence. Rather, the employer and the employee, and the union if applicable, all have obligations to participate in developing an accommodation plan that will permit the employee to actively participate in work activities to the extent possible, without creating undue hardship for the employer. A common example of accommodation may include removing an employee from safety sensitive duties. However, each case must be approached individually based on the requirements of the workplace and the specific circumstances of the employee.

Accommodation of Addictions

With the legalization of cannabis for recreational use on the horizon, it is anticipated that instances of cannabis addiction or dependency may become more common. Substance addictions and dependency are widely viewed as a disability requiring accommodation under human rights legislation.

When an employee discloses a potential addiction or dependency, employers need to know what questions to ask. Is there medical evidence of dependency? If it is confirmed there is a dependency, what types of accommodation may be necessary? Can the employee be accommodated without undue hardship? What if an employee with an addiction suffers a relapse? In cases of employee misconduct, is there evidence of a nexus between the dependency and the employee's misconduct?

Between now and this summer, employers will also need to ensure their policies are up to date to deal with the legalization of cannabis. Employers are well-advised to review their policies to ensure they adequately address cannabis possession, use and impairment at work, accommodation of cannabis use when appropriate, and if and when employees may undergo testing for cannabis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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