United States: The Legal Landscape For Canadian Employers One Year After Legalization Of Cannabis

Last Updated: October 10 2019
Article by Barry Kuretzky and Will McMillan

With Canada's federal election fast approaching, Canadians will also be marking the anniversary of a major legislative change that has had a significant impact on the employment law landscape in this country: the legalization of cannabis. It is worthwhile for employers to take stock of where we are now, as well as implications that may have arisen in the past year. The human rights component to the legalization of cannabis will likely continue to evolve and so it is useful to examine the cases that have begun to shape the landscape over the last several years, particularly with regard to the concept of "safety-sensitive" positions and workplaces.

Safety-Sensitive Workplaces, Accommodation, and Undue Hardship

Under Ontario's Human Rights Code, employers must accommodate the use of medical cannabis, and addiction to recreational cannabis, to the point of undue hardship to the employer. However, an important consideration is that this duty to accommodate must always be balanced against an employer's duty to protect its workers via all reasonable precautions. Such an instance of "reasonable discrimination" against employees who require medical cannabis most commonly manifests itself in safety-sensitive workplaces.

Although not defined in the Occupational Health and Safety Act, a safety-sensitive position has been defined in arbitration as "...one in which job performance requires the employee to be alert, physically coordinated and exercising good judgment, with a significant involvement in any part of the company's operations where impaired job performance could affect the health, safety or security of the employee, other persons, property or the environment." (International Brotherhood of Boilermakers, Local Lodge No. D575 v. Continental Lime LTD., [2002] M.G.A.D. No. 13 (QL)).

Meanwhile, the Canadian Human Rights Commission (CHRC) created the 2017 definition of safety-sensitive position as one that "if not performed in a safe manner, can cause direct and significant damage to property and/or injury to the employee, others around them, the public and/or the immediate environment."

In such a workplace, employers can impose restrictions on cannabis use in order to protect their employees and business. While imposing prohibitive off-duty conduct policies for employees in safety-sensitive workplaces may not be successful, it is up to employers to determine "fitness for duty" with regard to cannabis use, and they may communicate guidelines and expectations through employee training. An analysis of the reasonableness of an employer's actions in limiting cannabis use will be contextual and fact-specific.

Employee's Obligation to Proactively Disclose

Much has been made of the employee's obligation to proactively disclose use of medical cannabis or addiction to recreational cannabis. Employees are required to make this disclosure to their employers, which are then bound by a duty of confidentiality. The Supreme Court of Canada case Stewart v. Elk Valley Coal Corp., 2017 SCC 30 dealt with an employee who was employed in a safety-sensitive position in a coal mine and whose job was terminated because he breached the employer's Alcohol & Drug Policy by failing to disclose his cocaine addiction. This employee tested positive for cocaine after an accident; his union claimed he was discriminated against because of his addiction, but the Supreme Court disagreed, stating he was terminated because he breached the policy. An important takeaway from this case is that employees do not have a right to unilaterally decide to use medical cannabis at work, or recreational cannabis to which they are addicted. Rather, employees must proactively disclose to an employer their medical cannabis use or addiction to recreational cannabis and make their needs known to the employer. The employer then owes the aforementioned duty of confidentiality. Meanwhile, failure to disclose an addiction that is discovered upon testing following an accident in a safety-sensitive position can reasonably lead to employment termination due to a breach of a drug and alcohol policy.

No Duty to Accommodate Medically Prescribed Cannabis in a Safety-Sensitive Workplace

Another important case comes from the Human Rights Tribunal of Ontario. In Aitchison v. L &L Painting and Decorating Ltd., 2018 HRTO 238, the Tribunal stated that there is no "absolute right" to use cannabis at work even if it has been medically prescribed. Here, in the context of a seasonal employee who smoked at work for chronic pain, the employer's "zero-tolerance" policy for drugs and alcohol, of which the employee was aware, was upheld and the employer was permitted to terminate the employee's job for safety and policy reasons.

Further credence was given to the notion that employers may deny employment in safety-sensitive workplaces based on cannabis use in IBEW, Local 1620 v Lower Churchill, 2019 NLSC 49. Here, the Supreme Court of Newfoundland upheld an arbitrator's decision that denial of employment to an employee at a safety-sensitive construction site due to his medically prescribed cannabis use was reasonable, given that the employer was unable to measure the employee's impairment. In turn, the employer could not adequately gauge the risk of harm from the employee's cannabis use, thereby creating an undue hardship for the employer.

Dos and Don'ts

With the above in mind, employers should be aware of some further general guidelines for dealing with employees with respect to cannabis use.

Do:

  • Ensure the existence of reasonable cause before requesting that an employee in a safety-sensitive position take a drug test
    • This can include visible cannabis use at work, erratic behaviour, or behaviour that is consistent with cannabis impairment
  • Use phrasing such as "performance deficit" as the test for impairment in a drug and alcohol policy, since "impairment" itself is difficult to measure objectively
  • Conduct post-incident testing following an accident or report of dangerous behaviour if assessing potential drug use and the employee's condition are a reasonable part of an investigation

Don't:

  • Conduct pre-employment drug testing for employees
    • This is prohibited by the Ontario Human Rights Commission
  • Conduct random drug tests in a workplace, even if safety-sensitive
    • The only exception is if the employer can demonstrate that there is a problem with substance abuse among the employees in the workplace

Policy Development

When developing a drug and alcohol policy, employers should think about both deterrence and detection of substance use at work. If a policy is already in place for the workplace use of alcohol, illegal drugs, and prescription drugs that cause impairment, these practices can be drawn on in addressing the use of recreational cannabis.

Policies should generally address:

  • Most often, a zero-tolerance policy regarding use, possession, sale, and distribution of cannabis in the workplace
  • The prohibition against employees attending the workplace while impaired
  • Instances when the use of cannabis in the workplace will be accommodated and when it will not
  • Supporting medical documentation the employer may require regarding the use of medical cannabis in the workplace
  • The employee's obligation to disclose the need for medically prescribed cannabis or an addiction to recreational cannabis
  • From a discipline perspective, the consequences of non-compliance (improper use, failure to disclose) and the possibility of progressive discipline
  • The prohibition against cannabis consumption on breaks, at lunch, at client functions, and at social and professional office functions
  • How impairment will be assessed, including factors that will be observed (speech, gait, odor, testing, etc.)
  • What action may be taken if impairment is suspected (e.g., a private meeting to discuss)
  • Employees' obligation to comply with anti-smoking laws at all times, including when smoking medically prescribed cannabis

Crossing the Border

With the high frequency of cross-border business travel between Canada and the United States, it is important that employees and employers alike are well prepared for the difficulties that may arise due to admissibility issues when entering the United States now that recreational cannabis use has been legalized north of the border. Since Canadians who have legally purchased cannabis in their own country may face difficulty entering the United States as a result of purchase or use, employers and human resources groups within organizations should ensure that their employees are prepared for common questioning at ports of entry, especially if cross-border travel is a common occurrence for employees. For example, these issues can be addressed during a training program for all employees who regularly cross the United States border. It is also recommended that company policies be clear on expectations regarding cannabis use for employees who are frequent travelers to the United States. Employers should remain apprised of the law in this area and any developments in the area of legal consequences for cross-border travel and cannabis use.

Recommendations Going Forward

Employers can take comfort in the fact that they are protected from risks of employee impairment by the doctrine of undue hardship. An employer is only required to reasonably accommodate employees' medical cannabis needs up to the point at which the use becomes an undue hardship for the employer (with respect to the safety and health of other workers, for example).

In the context of safety-sensitive workplaces and roles, employers also can require all employees to arrive at work in a state of non-impairment and fitness to perform their duties. Meanwhile, employers should remain apprised of developments to the law regarding whether it is permissible to prevent employees from using cannabis recreationally while off duty. The primary determinant at this point in the evolution of Canadian law seems to be an assessment of whether said employees are "fit for duty" based on their roles.

Finally, employers should lay out standards and expectations for their employees on this issue, including in training and policies, in order to help protect themselves against risk associated with employee use.

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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