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Accommodation after legalization

Legalization of cannabis hasn’t changed employers’ duty to accommodate medical version of the drug
Powered By Canadian HR ReporterWorkplace - HR Policies||Written By Seth Holland
Accommodation after legalization

It’s now a few months into the era of legal cannabis in Canada. It’s still too early in the game to see what some of the effects might be – including for employers concerned with both employee impairment and use of medical marijuana. However, employees who do have prescriptions for the drug due to a disability should be accommodated, regardless of its legalization for recreational use.

The legalization of recreational cannabis this past October raised major alarm bells for some Canadian employers. More than a few CEOs and HR managers were concerned that legal pot would dramatically spike risk exposures and leave their organizations stumbling through a treacherous minefield of legal and organizational challenges ranging from workplace safety exposures to potential declines in productivity. 

While the sample size is undoubtedly small, there has been no indication that the legalization of recreational cannabis has created major issues for employers. While many employers are still working to amend their workplace policies and procedures to adjust to this new era of legalization, it’s largely been business as usual for most organizations as it pertains to the use of recreational cannabis.

The more challenging issue remains accommodating the use of medical cannabis in the workplace, an issue that employers have been dealing with long before the legalization of recreational cannabis in Canada. Accommodation is of particular concern to employers operating in safety-sensitive work environments, such as manufacturers, construction and energy firms, and healthcare providers, where an employee who is under the influence of cannabis has the potential to do serious harm to herself and other persons in the workplace.

Employers are prohibited from discriminating against employees on the basis of disability in every province and territory in Canada and, in most circumstances, are required to accommodate employees with disabilities to the point of undue hardship. According to Health Canada, more than 296,000 Canadians carry medical cannabis prescriptions to treat conditions such as glaucoma or chronic pain, and many require some form of workplace accommodation. 

Balance between safe workplace and accommodation

This presents a challenge for employers, who have a duty to provide a safe working environment — in Ontario, for example, that requirement is enshrined in the province’s Occupational Health and Safety Act, 1990 — while also accommodating employee disabilities and medical needs to the point of undue hardship. If you have reason to believe that an employee requires the use of medical cannabis at work, or suffers from an addiction —which is recognized as a “disability” under Ontario human rights legislation — your organization has a duty to accommodate. Notably, an employee cannot be disciplined or terminated because she suffers from an addiction or disability that requires the use of medical cannabis.

As such, employers must walk a difficult tightrope, balancing accommodation requirements and any risks to their organization that stems from the use of medical cannabis in the workplace. Those who take a proactive approach to workplace policy design and implementation, however, often find the process far easier to manage, particularly when it comes to accommodating medical cannabis usage. Employers who adopt a proactive approach often come to better understand the accommodation process as it applies to their workplace and get a better sense of what types of disabilities and work-related limitations they have the capacity to accommodate.

Despite the recent legalization of recreational cannabis, employers should note that Ontario’s Smoke-Free Ontario Act, 2017, prohibits the smoking of cannabis in an enclosed workplace, and that employers can expressly prohibit the consumption of cannabis in the workplace, except in cases where medical accommodation is required. However, employees do not have an absolute right to use medical cannabis in the workplace. This point was recently confirmed by the Ontario Human Rights Tribunal in a 2018 decision, Aitchison v. L & L Painting and Decorating Ltd. Employees have an obligation to make their need for accommodation known to their employer, and employees who use cannabis at work without first advising their employer of any medical need to do so may be subject to discipline or even termination.

Where employers become aware of an employee’s accommodation needs related to medical cannabis, they are legally required to accommodate the employee to the point of undue hardship. The undue hardship analysis implies that at a certain point, some measures of accommodation are not practical for employers to maintain and would constitute an undue burden on the employer’s ability to run its business. Employers can demonstrate undue hardship by showing that the proposed accommodation is likely to cause them financial harm, that it would require outside financing, or that the accommodation could create health and safety risks in the workplace. While factors are always weighed on a case-by-case basis, employers could reasonably argue undue hardship if the proposed accommodation impacts the quality production of goods or the effective delivery of services.

No matter the situation, employers must have valid workplace drug and alcohol policies in place that include coverage of legal and illegal substances, such as cannabis or alcohol, that can have an intoxicating effect that could potentially impair an employee’s ability to safely perform workplace duties. The Supreme Court of Canada has endorsed an employer’s right to proactively implement and enforce workplace drug and alcohol policies where the purpose is to maintain a safe work environment and prevent workplace accidents. Employers are entitled to prohibit the use of recreational cannabis at work and attending work while under the influence. They can also require that employees disclose addiction issues prior to workplace accidents. Employers may impose sanctions up to and including termination in the event of a policy violation.

But simply having tough policies isn’t enough. Workplace drug and alcohol policies must also be legally-enforceable and drafted in way that protects organizations from unnecessary legal risk and claims of discrimination. Policies should encourage employees to come forward with accommodation requests and assure that they will not be subject to discipline for doing so. Policies should also provide that a manager or representative of the employer respond to accommodation requests in a formal manner in writing. Policies that encourage self-disclosure can prove to be a useful tool to help prevent accidents and foster trust in the workplace. A precursor to accepting accommodation requests is training managers on their intake and processing. That means establishing clear procedures to assess, validate and determine which requests can be accommodated. Documenting key details is critical — this process should examine a range of factors including the employee’s work-related abilities and limitations, and the potential impact the accommodation will have on workplace safety and productivity. To avoid liability and protect the decision ultimately made with respect to any accommodation request, employers need to demonstrate that they have made procedural and substantive efforts to assess the employee’s disability-related needs in good faith and determine whether they could be accommodated. 

Even if an employee comes forward with medical documentation indicating a need to use medical cannabis, employers are free to request additional information as part of their accommodation obligations. It is within an employer’s right to seek information regarding any work-related limitations that may be caused by an employee’s use of medical cannabis or their disability, the quantity and dosage of medical cannabis that an employee has been prescribed for work use, and when and how often they need to consume it. The objective is to determine how that usage could reasonably impact the workplace and the business prospects of the organization. If yours is a safety-sensitive environment, it may be possible to make drug testing a pre-requisite of employment, while also requiring drug tests for individuals who may have been involved in a workplace accident where they were suspected of being under the influence.

Assistance, not discipline

When employees come forward and disclose an addiction or substance abuse issue, they should not be disciplined for drug use relating to their addiction. Your organization should establish a process for helping individuals access addiction counselling, taking a medical leave from work if necessary, and ensure their return is subject to ongoing rehabilitation or medical clearance confirming their ability to work. Overall, the process must not be punitive; the goal is to help the addicted employee recover and create the safest workplace possible.

For organizations who do not operate in safety-sensitive environments, demonstrating undue hardship stemming from the accommodation of medical cannabis can be far more challenging. If, for example, an employee that uses prescribed pot liaises directly with clients who raise their discomfort with the individual’s apparent intoxication during meetings — which can then be directly tied to a loss of business for the organization — a case could be made that permitting the cannabis use would constitute undue hardship. However, demonstrating a financial or operational impact in a situation such as this can be extraordinarily difficult. In such a situation, the best practice would be to work with the employee and their treating physician to establish clear ground rules that work for both parties regarding the amount of cannabis the employee needs to consume in a day, how and even when it can be consumed, and under what circumstances.

Perhaps most importantly, employers should note that accommodation is a two-way street that always requires compromise on both sides. It’s also a process not to be taken lightly — especially at a time when human rights and employment standards legislation are strengthening protections for workers with disabilities and addictions. Given that we are in the era of cannabis legalization in Canada, employers need to evaluate their workplace policies and procedures and ensure they are prepared to meet their duty to accommodate as it pertains to medical cannabis.

For more information see:

• Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 (Ont. Human Rights Trib.).

Seth Holland is a lawyer at Williams HR Law in Markham, Ont., where he practices in all areas of management-side labour, employment, and human rights law.