Canada: Good News For Employers: No Unfettered Right To Use Cannabis At Work

As the cloud of recreational cannabis legalization looms on the horizon, employers will face difficult situations pertaining to cannabis and the workplace. It is important to remember that just because recreational cannabis will be legal, and medically authorized cannabis use is already permitted, this does not mean that an individual will be given carte blanche to use cannabis however and wherever he or she chooses. Workplaces in particular will be allowed to strictly implement and enforce rules surrounding the use of cannabis, especially where there is a bona fide safety element to the specific job in question.

A pair of recent cases, discussed below, help to highlight the boundaries of cannabis use within the workplace and the limits of the duty to accommodate employees in safety sensitive positions with medical authorizations for cannabis.

Limitation on Use Where Medically-authorized

An authorization for medical cannabis does not create a license to use it at work. Such use of medically-authorized cannabis combined with a failure to inform an employer of the medical authorization and the possible necessity of its use at work or otherwise, may still provide grounds for with-cause termination where a proper drug and alcohol policy is in place. Importantly, where an employee has failed to inform the employer of the medical authorization, any discussions around accommodation are moot.

The Ontario Human Rights Commission in Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238 looked at just such a situation, involving an employee who smoked medically authorized cannabis on a job site. The job was particularly safety sensitive, as it involved being out on a swing stage many stories in the air. The incident which prompted the dismissal involved the employee smoking cannabis on the swing stage, without safety gear, 37 stories in the air. The employer had implemented a "zero tolerance" policy for both drugs and alcohol, and the employee was fully aware of this policy. He unsuccessfully attempted to argue that he had been given approval to medicate on the work site by the site supervisor; unsurprisingly, this was denied by the supervisor and the tribunal found this assertion by the former employee "fl[ew] in the face of the health and safety protocols that were in place".

Despite the allegations by the employee that the employer had failed to accommodate him, the tribunal found that he had never asked for any such accommodation, particularly because he never made his employer aware of the fact that he had a medical need to smoke cannabis. Although the employee had a doctor's note regarding his medication, there was conflicting evidence as to whether the note was ever delivered to the employer. Even so, the cannabis-prescribing doctor testified that he never would have made the authorization in the manner he did, had he known what the employee's work entailed.

The tribunal found that because the employee was fully aware of the zero tolerance policy, never made his employer aware of his prescription, was in an extremely safety-sensitive position where an error in judgment could have fatal consequences, never requested accommodation, and unilaterally decided to self-medicate without authorization, this constituted valid grounds for dismissal.

This case suggests that employees cannot unilaterally defy a policy which prohibits use of cannabis at the workplace, especially where there is a significant safety element; there is no "absolute right" to use cannabis while on the job, even if it is prescribed for a disability. The case also demonstrates the importance of a proper drug and alcohol policy.

Accommodation and the Difficulties with Measuring Impairment from Cannabis

The level of impairment from THC, the active ingredient in cannabis which causes impairment, is notoriously difficult to measure. The inability to accurately measure impairment from cannabis use is a concern for employers and there have been questions around whether an employer will be required to accommodate medical cannabis use in safety sensitive positions.

These circumstances were considered in the 2018 Newfoundland arbitration decision Lower Churchill Transmission Construction Employers' Association v IBEW, Local 1620. The grievor used cannabis with high THC content every night before going to bed to alleviate osteoarthritis and Crohn's disease. He applied for two general labourer positions, both considered safety-sensitive. He was denied employment in both due to his use of medical cannabis.

Although the grievor's physician gave evidence that he would be capable of working in such a position four hours after use of the medication, there was significant conflicting evidence from other sources which suggested impairment could last up to 24 hours. Further, there was no effective means of allowing the employer to measure any such impairment such that it could appropriately manage the risk to safety. Given the conflicting evidence and lack of means to measure impairment, the arbitrator held that accommodating the individual would have constituted undue hardship to the employer. Importantly, the arbitrator also noted that a family physician was not in a position to adequately assess the safety issues inherent in a particular job site – a more thorough understanding by someone closer to the circumstances of the job was necessary.

Implications for Employers

The two aforementioned decisions should provide some measure of relief for employers looking to control the use of cannabis at the workplace, especially where there are significant safety concerns; having a medical authorization will not override all safety concerns. Although these decisions were rendered in the circumstances of medically authorized cannabis, they are also helpful in the context of regulating recreational cannabis in the workplace as they confirm that use in the workplace is not an unfettered right, even where an employee has a medical authorization.

It is important to remember that every situation will be different and must be analyzed based on the particular circumstances. Employees with medical authorizations may be prescribed a form of cannabis with very little to no THC, meaning impairment will not likely be an issue. It is important that an employer's policy require an employee to advise the employer of a medical authorization before a significant incident, such as testing positive for cannabis after an accident, occurs. Employers will also need to get information from the medical professional who provides the authorization, including dosage, THC concentration and timing of use.

Resources for Employers

Field Law has developed a comprehensive workshop to assist employers in preparing for the legislation which we plan to hold in Edmonton and Calgary in the coming months. We can also tailor the workshop to suit the needs of your organization and present the information to your team at your offices.

We are also available to assist with reviewing and updating alcohol and drug policies or, if such a policy is not currently in place, to draft an alcohol and drug policy appropriate for your workplace.

More to Come

Field Law's Cannabis Industry Group will continue to countdown to the implementation of the legislation sometime in the summer of 2018. Stay tuned for more information on labour and employment, occupational health and safety, intellectual property and business-related issues that may arise following the legalization and regulation of cannabis in Alberta and the Territories.

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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