Cannabis and the Workplace

Written on behalf of Peter McSherry

The recent legalization of recreational use of cannabis has quite naturally raised the issue of marijuana in the workplace. This question is not as simple as one might expect. This is the second in a series of posts dealing with workplace cannabis issues. We reviewed the issue of the unfair denial of medical cannabis under a drug plan in a prior post.

There are five basic fact situations to be reviewed. These are:

1. Use of cannabis in the workplace;
2. The use of cannabis in the workplace as a form of medical treatment;
3. Does the user suffer from an addiction and if so, what steps, if any, must the employer take to accommodate such a disability;
4. As a sub-species of (3), does the user have a perceived addiction and if so, what is the test to determine such a perception and if so, what steps must an employer take in this circumstance?
5. What may the employer do to enact random drug tests during employment or pre-screening tests prior to offering employment?

The fourth issue arises as human rights law prevents an employer from taking adverse steps such as termination or other discipline due even to the perception that the employee suffers from a disability such as an addiction to cannabis.

Issue 1 Simple Use

The short answer to this question is that the employer is quite right to prohibit the use of cannabis during working hours pure and simple. This also applies to the employer’s right to insist that the employee attend work drug free and remain that way throughout the working day.[1]

A subordinate question will be whether a violation of this policy will lead to termination. That will likely depend on the context of the work environment, the extent of the usage, whether this is an isolated occasion and the usual factors dealing with any termination case.

Issue Two Medical Approval

There is no difference between adverse treatment due to a disability and treating an employee unfairly due to the treatment that they have been prescribed by a doctor. For this reason, an employer cannot discipline an employee solely because of the need to use medical cannabis during the working day.

This does not, however, mean that the employee can smoke cannabis as they choose in the workplace. The employer may set rules as to the location that the marijuana is consumed, such as requiring that the employee leave the workplace premises. This being said, a recent policy document issued by the Ontario Human Rights Commission[2] states that edible cannabis should be allowed to be consumed, again for medical purposes, in the place of employment.

Similarly this does not allow the user to be cognitively unable to perform their work functions.

Duty to Accommodate Medical Disability

This law requiring that the employer allow medical use of cannabis originates from the duty to accommodate the disability. As noted, it is subject to certain reasonable limitations. It is not open ended. The employer must, however, accommodate to the point of “undue hardship”.

Recent Tribunal Decision

This question arose in a recent Human Rights Tribunal case involving a commercial contractor involved in the restoration of high-rise buildings.[3] Its employee suffered from chronic pain and was prescribed medical cannabis as a means of pain management. The worker was observed smoking cannabis while working on a “swing stage” suspended outside a building being renovated on the 37^th floor.

This is an unusual fact situation but it nonetheless illustrates the point. The duty to accommodate must end at some point.

The employee’s immediate suspension and subsequent termination were upheld by the Tribunal.  The employer must also consider the health and safety of others in the workplace and the public generally. The right to use medical cannabis is not absolute.

More to Come

We will review the remaining issues relating to addiction and drug testing in subsequent posts. Stay tuned.

Let Legal Advice Guide Your Actions

This question of cannabis use in the workplace is complex. It will become yet more complicated in subsequent posts. If you are an employee in this context, it is important to take legal advice to understand your rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] The question of random drug tests will be reviewed in a later post.

[2] The OHRC policy is not a statement of law. It is solely the view of the OHRC as what it believes the law should be. It may certainly be influential but it is not definitive law.

[3] Aitchison v L&L