March 7, 2019
Stuart Ducoffe (B.C.L., LL.B.,CHRL) is a seasoned employment and labour lawyer as well as the co-founder of e2r®, which powers Ceridian HR Advisory Services. He is also a partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP and leads the firm's employment and labour law practice. Follow @e2rSolutions on Twitter to stay up to date on Stuart and his team!
With the legalization of cannabis in Canada, questions have come up surrounding its use in the workplace. Human rights can be in play, making it critical that business owners and their HR representatives understand the new requirements and any obligations they have. This list, prepared with assistance from the HR legal professionals at e2r®, outlines the key points to know.
Be aware of the laws regulating cannabis in your region. The legal age for possessing and using cannabis is generally the same as the provincial age requirements for alcohol and tobacco, though there are exceptions. Smoking cannabis outside has restrictions, which are outlined by each province. Every province prohibits smoking recreational cannabis in enclosed workplaces, enclosed public places or areas designated as smoke-free.
Learn to recognize the signs of impairment. Employees do not have the right to be impaired at work, even if they are authorized to use medical marijuana. As a business owner, it is your duty to ensure the safety of your workplace, while accommodating those who are authorized to use medical marijuana, such as you would with other disabled employees.
Ask an employee to sit down for a discussion if they are showing signs of being impaired at work. During the discussion, employers should determine if the usage is for medical or recreational purposes and assess if the cannabis use is the result of an addiction. Employers are obligated to accommodate to the point of undue hardship if an addiction or medical authorization is present.
Incorporate the results of the discussion into what kind of disciplinary action is taken. Employers should focus on whether a dependency has influenced the employees’ behaviour and whether the employee can be accommodated, as required by law. If the employee’s cannabis use is not the result of an addiction or for medical purposes, then they could be subject to discipline, up to termination.
Treat an authorization for medical marijuana the same as any other prescription medication. Don’t assume the use of marijuana will impair the employee’s ability to perform the essential duties of their job. Employers can and should request a copy of the employee’s authorization to use medical marijuana and have the right to obtain information from the employee’s physician regarding safety or performance impact resulting from the treatment.
Participate and act reasonably in response to requests for accommodation. Accommodation can include: time away from work to attend a treatment program, modified work hours, or modified work duties. Refusing accommodation on the basis of undue hardship is not easy to do, and it is the employer’s responsibility to prove if any undue hardship exists.
If an employer finds an employee has poor performance or even incompetence, they must regularly communicate with the employee about how their disability is impacting performance or else discipline could be found to be discriminatory. Additionally, seek medical information from the employee’s doctor regarding the potential impact of prescriptions on their ability to perform their duties.
As an employer, you must accommodate any employee with an addiction to the point of undue hardship, the same as employers are required to do for any disability. Canadian human rights legislation specifically describes dependence on alcohol or a drug as a form of disability. Disability is a prohibited ground of discrimination and employees are protected against discrimination in the workplace.
Be aware that drug and alcohol testing related to employment is very restricted in Canada. While testing can show current impairment with alcohol, the same does not exist for drug use. Many substances may stay in one’s system from past usage, and there is no way to measure the current level and its impact. Testing may be appropriate in circumstances such as post-incident or for positions that require a high level of safety; however, you should consult with an HR lawyer before proceeding.
Create a good policy for drug use in your place of business and communicate the policy to your employees as soon as it is finalized to help prevent misunderstandings. A good policy should clearly state that employees need to attend work fit and able to do so. It should also prohibit the use of drugs and alcohol before or during work. Having a strong policy that your employees read and sign can help you avoid misunderstandings in the workplace and ensure you have a record of communication.
Need more information about creating a policy, or have other cannabis-related questions? Delve deeper into this topic by downloading our informative guide, What Canadian employers need to know about cannabis at work.