On Oct. 17, the legislation decriminalizing cannabis in Canada will come into force.
The reality is that cannabis use, whether it is medicinal or recreational, is already far more prevalent than it used to be.
So what does this mean for the workplace?
Can employees now smoke cannabis at work or on their breaks? What should employers be doing to get ready?
yourself on what cannabis is, and what it is not, as well as what the
new laws allow. Particularly when it comes to medicinal use, “cannabis”
does not necessarily mean smoking a joint. It can be used topically,
through edibles, or through a vaporizer.
In many instances, the
ingredients that cause impairment in recreational cannabis can be
removed. So your employee that is prescribed cannabis may well not be
smoking nor impaired after consumption.
The legalization of
recreational cannabis makes it very similar to alcohol. Contrary to what
many people are concerned about, it does not mean that employees will
have the right to be impaired or consume cannabis in the workplace.
fact, the Ontario government passed a provincial act, expected to come
into force at the same time as decriminalization, explicitly prohibiting
the consumption of recreational cannabis in the workplace and any
public place, with exceptions for medicinal cannabis.
Duty to accommodate
on the circumstances, employers may have a legal obligation to
accommodate employees with respect to the use of cannabis, such as
employees who have a prescription for medical cannabis or have a
Addiction is recognized as a disability under
human rights legislation, and thus, an employee who has a marijuana
addiction may trigger the employer’s duty to accommodate up to the point
of undue hardship, unless the employer can show that there is a bona
fide occupational requirement (e.g. safety-sensitive position).
Accommodation is a two-way street: the obligation is on the employee
to come forward with their request for accommodation and provide
sufficient information to allow the employer to assess the need and
options for accommodation, including an analysis of whether
accommodation is possible without undue hardship.
entitled to understand the limitations on the employee’s ability to
carry out their job functions. An employee’s request for accommodation
of marijuana use should be treated just like any other request for
Employers have a competing duty to take every
reasonable precaution to protect workers under the Occupational Health
and Safety Act. Even if the duty to accommodate is triggered, no law
will permit employees to work while impaired if doing so poses a safety
risk to themselves or others.
should have clear workplace policies and procedures in place with
respect to cannabis use. While an absolute ban on drugs and alcohol may
not be feasible (for example, sales employees may be expected to wine
and dine clients), entitlements, limitations, duties and disciplinary
consequences of breach of policy should be clearly set out.
may already have employees in your workplace who are using prescription
medication that can cause impairment; cannabis should be treated in the
same manner — it is only a concern if it will interfere with the
employee carrying out their duties.
Employers should have a clear
policy in place which includes the duty to report any such prescription
medication, to allow you to assess the need for accommodation in
compliance with the Human Rights Code.
Your workplace policy
should encourage employees to report any addiction issues related to the
use of recreational cannabis so that you are able to accommodate the
employee’s disability pursuant to human rights legislation.
should be mindful that testing for drug use, including cannabis, is
only permissible in limited circumstances, and any drug and alcohol
testing policies should be drafted, reviewed and updated in consultation
with an employment lawyer. Employers would be well-advised to consider
less intrusive measures than testing.
Responding to requests for accommodation
is crucial to have an accommodation policy and process. In responding
to requests for accommodation, employers would be well-advised to adopt
the following practices:
- Do not dismiss any requests out of hand.
one process for responding to all requests for accommodation - to learn
more about how to respond to requests for accommodation, read our blog
- Maintain communication with the employee throughout the process.
appropriate information, including medical documentation if applicable,
speaking directly to the employee’s ability to do the job. To learn
more about the role of medical documentation in disability-related
accommodation requests, read our blog post here.
and educate yourself. Work with the employee to understand the needs
and limitations, and how the ground intersects with job duties.
- Do not stereotype.
- Assess whether there is a legitimate need for accommodation.
options for accommodation. Employees are not entitled to their
preferred form of accommodation; employers are entitled to ascertain
what options are available, and choose a reasonable option. In
considering whether accommodation would cause undue hardship, and in
comparing available options, employers can consider the cost, outside
sources of funding, and health and safety requirements of the job (if
any). Remember, some hardship is acceptable.
- Document all
considerations and assessments. This will help prove that you have
taken every step up to the point of undue hardship, and as a result,
you will be in a much stronger position to defend a discrimination
- If you cannot accommodate without undue hardship,
clearly explain this to the employee and be prepared to show why this is
- Maintain confidentiality.
- Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.
in order to help avoid unnecessary and significant liability, employers
should seek advice from an employment lawyer before imposing discipline
relating to the use of cannabis. Even smoking marijuana while at work
does not necessarily mean that the employer would have just cause for
At the end of the day, there has been a lot of concern
expressed by employers, but the sky is not falling. There is no reason
to panic, but now is a good time to review your drug and alcohol
policies to make sure they accord with legal and societal realities.