According to the most recent statistics from the Canadian Cannabis Survey (CCS), 5% of people surveyed who used cannabis in 2018/2019 reported consuming it at least once a week during work or in the morning before, while 12% said they did so at least once a month.
This information, and more like it, can help employers understand social trends regarding cannabis when meeting their duty to accommodate, which applies to both medical and dependant users. Tribunals and courts also provide valuable insight into the obligations of both employers and employees regarding the duty, as seen in three recent decisions.
This article highlights key data from the CCS and the reasoning behind the three decisions, which include allowing a professional to continue consuming and working because of a diagnosed dependency, placing limits on what is an acceptable prescription, and determining what constitutes uncooperative behaviour by an employee failing to disclose his consumption at the time of hire. It will also outline what employers can add or take away from their drug policies to ensure they remain fair for recreational, dependant and medical consumers.
Accommodating a professional with cannabis use disorder
Many employment and labour disputes involving cannabis deal with safety-sensitive work environments and impairment, so a decision dealing without either is unusual.
In Law Society of Ontario v. Dick,1 the Law Society Tribunal was asked to decide on an interlocutory suspension order for a junior lawyer suspected of unfitness. Mr. Dick had threatened Law Society staff verbally and in writing including with the invocation of witchcraft, curses or hexes. This behaviour posed a significant risk of harm to the public interest and the tribunal was convened to decide on whether Mr. Dick should be suspended while he awaited his capacity hearing or whether less severe action should be taken.
Central to the matter was a psychiatrist's evaluation finding that he suffered from cannabis use disorder and a chronic psychotic disorder persisting since law school. The psychiatrist determined that these mental disorders contributed to Mr. Dick's behaviour and unpredictability rendering him incapable of meeting some of his obligations. Free from both disorders, the psychiatrist opined, he may very well function and work as a lawyer. Mr. Dick did not have a prescription for medical cannabis.
The Tribunal acknowledged its duty to accommodate Mr. Dick and permitted him to retain his license under certain conditions including direct supervision from another lawyer, undertaking best efforts to be treated for the disorders, and remaining courteous and civil in his communications. Notably, he was also allowed to continue consuming cannabis but was restricted from doing so in the morning of or during a day in which he was practising law. The fact that he had no other complaints against him, was nonviolent, and had corrected his behaviour after proceedings began was to his benefit.
Substance use disorders are recognised disabilities requiring accommodation, but knowing when an employee has crossed the line from benign recreational use to dependency is hard and will likely require a formal evaluation, which some employees may be reluctant to undergo. It should be noted that Mr. Dick was a regulated professional subject to rules of professional conduct, which could more readily compel his psychiatric analysis. Other industries may not have such tools.
Consider also that 96% of respondents to the CCS who consumed cannabis more than once in their life reported that they never felt the need for professional help for "non-medical use," and 49% who reported poor mental health indicated they'd used cannabis for non-medical purposes in the previous 12 months. This suggests that some cannabis consumers won't think they have a problem, especially as stigma around addiction may prevent people from even inquiring about whether their consumption is an issue.
Insights for employers
Employers have a duty to inquire about accommodation needs before they act in a way that may negatively affect the employee when he or she is suspected to be unwell.2 This arguably occurred in Law Society of Ontario v. Dick. The regulator contacted the lawyer when he invoked the occult against staff, however, it appears their motivation was to investigate rather than help.
Drug use policies should announce the employer's willingness to support consumers with medical needs or a dependency, provided of course, such support does not amount to undue hardship. This may inspire disclosure by employees leading to better long-term outcomes. Tribunals also expect genuine efforts by employers in accommodating disabilities. Such efforts are also expected by the employee.
Accommodating an uncooperative consumer
While much of the onus on the duty to accommodate falls to an employer, employees are also obligated to cooperate in the employer's efforts to accommodate.
In Bourassa v. Trican Well Service Ltd.,3 the complainant was employed in a safety-sensitive position as a cement operator but had failed to disclose his medical use of cannabis when hired and allegedly abstained from use prior to a pre-employment medical exam. The employer said that its policy had a process for disclosing medical prescriptions, and had the employee done so ahead of time, they would have accommodated him. Following a random worksite drug test, the complainant tested positive for THC and was required to undergo a substance abuse evaluation.
The employee refused to proceed with the exam as proscribed by the drug policy when he was told he could not record it. He believed the employer was treating him as a "drug addict" and had been advised by his lawyer to tape the session. Unwilling to change the rules for him, the employer offered its VP Operations to attend as witness in an effort to resolve the complainant's concerns. After numerous emails, he agreed to attend but ultimately failed to book the session and was terminated for breach of the policy. He also switched his medication to Sativex, which is a Health Canada-approved cannabis extract used in pain treatment.4
The Human Rights Tribunal of Alberta reviewed the initial complaint and upheld the termination. It stated that while the employer had a duty to accommodate, the duty was never enlivened because the complainant frustrated the process. The employer was "willing, and took steps, to assess the complainant's cannabis use."5 In this case, the complainant simply refused to participate. His subsequent shift to Sativex did not negate the fact that he had tested positive for THC and was required to undergo evaluation for substance abuse.
Insights for employers
This decision shows the benefit of having a comprehensive drug policy that allows for disclosure and reasonable evaluation procedures. It also shows the limit of such policies. If employees are unwilling to disclose their use, especially due to perceived stigma, there is little the employer can do to accommodate them. Again, employers that are proactive and genuine in accommodating employees will be recognised as such before tribunals.
Of respondents to the CCS who reported using cannabis in the previous 12 months, 45% used it three days per month or more and 18% used it daily. Employers should accept the likelihood that employees are consuming, possibly regularly, and factor that into their policies.
Accommodating a medical cannabis consumer with a dubious medical prescription
Employees seeking a medical prescription for cannabis should ensure their doctor thoroughly assesses their need and isn't just ticking boxes.
The complainant in Everitt v. Homewood Health Inc.6 obtained a cannabis medical prescription for arthritic pain before seeking enrolment into a voluntary pre-screening program that would dispatch him to safety-sensitive worksites more quickly. He tested over the permitted limit for THC and was denied enrolment, which the Director of the Alberta Human Rights Commission argued was discrimination.
The Director called the complainant's cannabis authorizing physician, Dr. Goddard, as a witness. The court accepted the complainant suffered from arthritis but did not accept that Dr. Goddard had "reasonably and objectively believed that cannabis was the appropriate treatment for the complainant's disability."7
At the time, Dr. Goddard was required to prescribe cannabis according to the Marihuana Medical Access Regulations,8 which stipulated that prescriptions for arthritis require "severe pain." Dr. Goddard so diagnosed the complainant, but medical imaging reports described the complainant's condition as "mild," "minimal" and "early." Dr. Goddard also admitted to merely checking boxes on the form to ensure the authorization was legal. The Tribunal further noted that he had not considered the complainant's prescription medications at the time of authorization, did not have a full medical history or complete medical file, did not consider the nature of the complainant's work in his analysis, and that the diagnosis was very brief.
The Tribunal here provides support for an argument against prescriptions given without a comprehensive assessment, though it does not make clear from where its objective and reasonable standard comes. Such a standard was not apparent in either the previous or the current regulations.
Certainly, the College of Physicians and Surgeons of Alberta has a standard of practice for cannabis prescription that is currently under review.9 This requires the physician to assess the patient's addiction risk, confirm conventional therapies are ineffective, evaluate the patient on a regular basis, and see them at least every three months, amongst other things.
Insights for employers
Employers should be cautious questioning an employee's prescription given the personal nature of such information. That being said, Everitt v. Homewood Health Inc. shows that some prescriptions may not be reasonable or objective under the circumstances and can be used in an argument against a duty to accommodate where admitted as evidence. Employees who do genuinely seek out a prescription for medical cannabis should confirm with their physician that alternatives are inappropriate and be ready to justify their use on objective criteria and not merely personal preference.
Accommodating cannabis use and other challenges
Given the relatively recent legalization of recreational cannabis, employers should aim to keep informed of recent developments in social trends and decisions surrounding the duty to accommodate employees' use of cannabis.
Join us for a webinar on Tuesday, March 24 at 1:00 pm EST to learn more about the challenges facing employers and the most recent decisions that can guide the creation of policies.
 Law Society of Ontario v. Dick, 2019 ONLSTH 55.
 The Ontario Human Rights Commission, Policy on preventing discrimination based on mental health disabilities and addictions, seen February 4, 2020 at http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/13-duty-accommodate#_ednref208. Note, there is some commentary on whether the duty to inquire is ubiquitous in Canada and some jurisdictions may not call it as such. Ontario and BC decisions support such a duty: First Reference Talks, Before the duty to accommodate, the duty to inquire, December 11, 2017, De Bousquet PC Barristers and Solicitors, seen February 5, 2020 at https://blog.firstreference.com/before-duty-to-accommodate-duty-to-inquire/#.XjrT3mhKguU.
 2019 AHRC 13.
 Health Canada, fact Sheet – Sativex, seen on February 6, 2020 at https://www.canada.ca/en/health-canada/services/drugs-health-products/drug-products/notice-compliance/conditions/fact-sheet-sativex.html.
 2019 AHRC 13 at para 13.
 2019 AHRC 36.
 2019 AHRC 36 at para 39.
 SOR/2001-227. These have since been replaced by the federal Cannabis Regulations SOR/2018-144.
 College of Physicians and Surgeons of Alberta, Standard of Practice: Cannabis for Medical Purposes, Issued by Council April 3, 2014. Seen on February 7, 2020 at http://www.cpsa.ca/standardspractice/cannabis-for-medical-purposes/.
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.