"While many of the concerns [over cannabis] are likely misplaced, wise employers will consider preparing or updating drug and alcohol polices to address the legalization of cannabis."
The ability to purchase and use cannabis on a recreational basis has been legal in Canada for just over a month. Employers are concerned about the impact this landmark change will have on their workplaces.
While many of the concerns are likely misplaced, wise employers will consider preparing or updating drug and alcohol polices to address the legalization of cannabis. In the absence of such policies, employees may be uncertain about their right to consume cannabis before or during work hours; many may simply assume that they are entitled to do so. This is of particular concern for employers with safety sensitive operations.
Below are some of the key considerations for Ontario employers.
Cannabis in the Workplace- Employer Responsibilities
Ontario law prohibits smoking or vaping in enclosed workplaces. Employers should exercise all reasonable measures to communicate and enforce the prohibition.[1] An employer that fails to comply with its obligations may receive a fine of up to $100,000 for a first offence of $300,000 for repeat offences.
While smoking or vaping is prohibited in enclosed workplaces, it is important to note that there is nothing in the new cannabis legislation directly prohibiting impairment in the workplace.
The Occupational Health and Safety Act requires employers to take every precaution reasonable in the circumstances for the protection of workers. As such, it is the responsibility of employers to implement policies which mitigate the risk of impairment in the workplace.
Drug and alcohol policies should explicitly prohibit cannabis usage during working hours, including breaks and lunches. Such policies should clearly set out an employer’s expectation that employees report to work in a non-impaired state and send a clear message that use during the workday is prohibited, particularly for employees in safety-sensitive roles. Employees should be made aware of the consequences of breaching such policies.
Accommodation Obligations
When preparing policies prohibiting use, employers must account for their accommodation obligations under the Ontario Human Rights Code (the “Code”). The obligation could arise in relation to employees who use cannabis for medicinal purposes or for employees with dependency issues. Employers may be required to tolerate some degree of impairment in the workplace in order to accommodate medicinal users.
Employers should avoid zero tolerance policies that require automatic discipline or termination for cannabis use or impairment. Employers have a duty to inquire with employees who exhibit signs of being unwell or requiring disability-related accommodation.
Policies should require employees to disclose their need to consume medicinal cannabis or their addiction to the substance so that employers can consider risk mitigation and accommodation. Policies should state that failing to disclose may result in disciplinary action.
When dealing with a request for accommodation in regards to cannabis, an employer can inquire and seek documentation from employees to substantiate their requests. Employers are entitled to request confirmation from an employee’s physician that cannabis use does not impair their ability to perform their duties effectively and safely. Employers are not required to accommodate cannabis use or impairment if doing so would cause undue hardship. This may be the case in safety sensitive workplaces.
Individualized assessments are crucial when dealing with accommodation requests.
Drug Testing
Testing for tetrahydrocannabinol (THC), the component of cannabis that produces a ‘high’, poses many challenges. Testing methods available today can detect the presence of THC in an individual’s system, indicating past use, but not necessarily present impairment. As well, levels of impairment differ from person-to-person based on their tolerance and frequency of use.
As such, testing for cannabis impairment in the workplace is generally prohibited except in narrow circumstances. The law does not recognize the validity of pre-employment testing or drug testing. In certain circumstances, drug testing may be permitted where there has been a serious workplace incident or accident or where impairment in the workplace is suspected.
Training
Aside from formalized testing, training is key in mitigating the risks posed by impairment in the workplace. Supervisors and management staff should be properly trained on drug and alcohol and accommodation policies and on the signs of impairment.
Concluding Remarks
Concerns about the risks of the legalization of recreational cannabis in Canadian workplaces are most likely excessive. Most employees who consume cannabis will not present for duty in an impaired state. Further, your existing policies concerning drug and alcohol use in the workplace likely need minor adjustments in order to reflect the new legal reality.
The lawyers at Lakhani Campea LLP would be happy to help you revise or draft policies that will mitigate the risk of cannabis impairment in your workplace.
[1] Important information regarding signage requirements can be found here: https://www.ontario.ca/page/no-smoking-no-vaping-signs-businesses