Getting out of the Weeds: A High-Level Analysis of the Implications of Cannabis Legalization for the Workplace November 2018 By Steven Tomlins, PhD Senior Researcher, Institute on Governance The Institute on Governance 60 George Street, Ottawa, ON, K1N 1J4 613-562-0090 info@iog.ca
Getting out of the Weeds: A High-Level Analysis of the Implications of Cannabis Legalization for the Workplace By Steven Tomlins, PhD, Senior Researcher, Institute on Governance Introduction This analysis examines the implications of the legalization of cannabis for different groups of cannabis users in the workplace, in order to identify the distinct legal ramifications for each set of users. The data suggests that the number of regular marijuana users will likely not significantly increase now that cannabis is legalization in Canada. According to a 2016 poll by Insights West, only 9% of Canadians who have never used marijuana are likely to try it for the first time following legalization. 88% of surveyed respondents reported not being likely to try marijuana, which could suggest that there will not be a surge of employees using cannabis during work hours. 1 Therefore, it is not expected that the legalization of cannabis will have a major disruptive effect on current workplace policies. Employers should, however, have in place policies to monitor the performance of employees, so as to mitigate any legal disputes that could arise due to a difference of opinion over the performance of a marijuana user and the company s viability. Discussions with and accommodations for employees who regularly use cannabis should be documented by management as a proactive measure to demonstrate the proper policies in this area were followed, should it become an issue. Addicted Users The Canadian Human Rights Act (CHRA) does not differentiate between the use of illegal and legal drugs when it concerns the treatment of addicted users. Under the Canadian Human Rights Act, disability is one of 11 grounds of discrimination, and disability includes those with a previous or existing dependence on alcohol or a drug 2 According to the CHRC Perceived disability may include an employer s perception that a person s use of alcohol or drugs makes him [or her] unfit to work. The CHRC legislates accommodation, meaning, the necessary support to permit the employee to undergo treatment or a rehabilitation program and consideration of sanctions less severe than dismissal. Moreover, requiring an employee or applicant for employment to undergo a drug test as a condition of employment will, in most cases, be considered a discriminatory practice on the grounds of 1
disability. 3 Other Human Rights Commissions across Canada have similar laws. The Ontario Human Rights Code (OHRC), for example, considers addictions to drugs or alcohol to be a disability and users are entitled to make a workplace discrimination complaint if they are not accommodated to the point of undue hardship. 4 This applies to cannabis use before legalization, and it remains the case now that Canadians (of age, which varies by province/territory) can purchase it without penalty. Recreational Users In terms of recreational users, the OHRC policy on drug and alcohol testing explains that, [p]eople who use substances recreationally are not protected by the Code, unless they are perceived to have disabilities, which refers to addiction. However, in order to seek protection from the Code, an individual would likely have experienced discipline due to an employer s perception of an employee having a substance abuse problem (i.e., an addiction), effectively making that clause moot. The same policy applies to recreational alcohol use verses dependency. It is presumed that an employee who does not have a habit of coming to work impaired by alcohol, but does so on a rare occasion, is likely not to be considered for termination based on only rare occurrences. In cases where the dependency affects an employee s job, then an employer might consider dismissal to be an option. However, in those cases individuals are protected by the Code as having a disability. Moreover, OHRC specifies that some people who claim to be recreational users may have an addiction, which leaves open the possibility that an employee who is fired for what both employee and employer agree at the time is recreational use of marijuana can be deemed by a Human Rights Tribunal as actually being a symptom of addiction, and thus not grounds for dismissal unless an employer can show that accommodation would cause undue hardship to the organization. Accordingly, it would be advisable for management to treat recreational use as a symptom of addiction and, if perceived as warranted (i.e. cannabis impairment at work seems habitual for an employee) offer accommodative measures rather than disciplinary measures, unless accommodation would cause undue hardship. The OHRC defines undue hardship as: 1) the cost being so high that it would alter the nature or affect the viability of the business and/or 2
2) the health and safety risks to workers, members of the public or the environment are so serious that they outweigh the benefits of the requested accommodation. 5 According to a report by McMillan LLP, to date no employer has been able to successfully establish undue hardship based on the health and safety risks imposed by marijuana. 6 According to the OHRC, the appropriate means of accommodation for addicts include providing the support necessary to enable that person to undertake a rehabilitation program and the organization must arrange and cover the cost of the accommodation needed. If an employee refuses accommodation an employer has to show, through progressive discipline, that the employee has been warned and is unable to perform the essential duties of the position, in order to justify dismissal. 7 A key term here is progressive discipline, if an employee has a cannabis-related workplace issue it is thus important for management to document attempts to accommodate, and, if warranted, progressively discipline the employee, up to the point of dismissal. The OHRC does not specify what disciplinary measures are acceptable in these cases. Medicinal Users Medical marijuana users have much of the same accommodations as the two aforementioned user subgroups. Like addicts or recreational users, medicinal cannabis users have the right to equal treatment with respect to their employment without discrimination on the grounds of disability 8 under Section 5.1 of the Ontario Human Rights Code. This legally binding accommodation protects users of any doctor-prescribed drug, which includes cannabis prescribed by a doctor for various ailments. In addition, section 33 (1) of the Ontario Workplace Safety and Insurance Act (OWSIB) states that a worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury and is entitled to make the initial choice of health professional for the purposes of this section. In various cases, this clause has entitled workers to financial reimbursement for their medical marijuana medication by the Ontario Workplace Safety and Insurance Appeals Tribunal. 9 There are circumstances where employers are not mandated to accommodate employees that use medical marijuana and these include situations where the impairment of a worker 3
could endanger the safety of the employee and/or that of their co-workers. Employers have the duty, under section 25 of the Ontario Occupational Health and Safety Act (OHSA), to take every precaution reasonable in the circumstances for the protection of the worker, 10 which could mean choosing not to accommodate an employee s request to use cannabis (especially in the case of operating heavy-duty equipment). This, however, does not mean that the employer does not have the duty to accommodate the employee in other ways (i.e. issuing the employee a leave of absence or other forms of work), 11 or that there are grounds for dismissal. Medical marijuana use should be included in workplace standards and policies for prescription medication use that may cause impairment, and in consideration of the codes and laws that govern their usage and accommodation. This way, both employers and employees will have a clear understanding of the appropriate measures, procedures and implications involved in medical marijuana intake. A Note on Drug Testing The CHRC does not generally consider pre-employment drug testing and random drug testing acceptable ( In the Commission s view, drug testing is generally not acceptable, because it does not assess the effect of drug use on performance ), and if conducted an employer risks facing charges of discrimination. Testing for drug use is only acceptable/permitted: 1) When there is reasonable cause; 2) As a requirement of an agreed upon rehabilitation program, or 3) For post accident monitoring, as long as tests occur as part of a broader program of medical assessment, monitoring and support. Random drug tests may occur as long as they follow an employee s disclosure of an addiction and they must be part of a broader program of monitoring and support. The takeaway from these recommendations is that drug testing should only be conducted in cases directly pertaining to serious safety concerns. As a general rule, if an employer (management) suspects that an employee is impaired by cannabis at work, as with other substances, the employer should first propose treatment options rather than discipline, unless it can be shown to affect the company s viability and/or safety concerns can be shown 4
to be so serious that they outweigh the benefits of proving individualized accommodation or consideration to a worker with an addiction or dependency problem. 12 The Takeaway If an employee comes to work impaired by recreational cannabis intake, and it is uncharacteristic for that employee, management should treat it as such and it would not warrant severe discipline (certainly not dismissal). If it appears to be habitual and is cause for concern, even if said employee claims not to be addicted, the human rights commissions recognize denial as a symptom of addiction, which is covered under disability as grounds for a discrimination complaint, so, again, dismissal is not recommended. In such cases accommodation should be offered (treatment; a period of leave) and documented. If accommodations are rejected, disciplinary actions should be documented to show progression before termination. In cases where the user is prescribed a cannabis product from a physician, the employee must be accommodated unless that accommodation causes the organization undue hardship or is a safety risk. Drug testing is advisable only in prescribed scenarios and must be justified in the specific instances where it is warranted. 1 Canadians Want Legal Marijuana, But Unsure of Where to Buy It, http://www.insightswest.com/news/canadians-want-legal-marijuana-but-unsure-of-where-to-buy-it/, Insights West, October 18, 2016. 2 Section 25, Definitions, Canadian Human Rights Act, R.S.C., 1985, c. H-6. 3 Canadian Human Rights Commission Policy on Alcohol and Drug Testing, http://www.addictionconsulting.com/media/drugpolicy.pdf, Canadian Human Rights Commission. June 2002. 4 Policy on Drug and Alcohol Testing, http://www.ohrc.on.ca/sites/default/files/policy%20on%20drug%20and%20alcohol%20testing_revis ed_2016_accessible_1.pdf, Ontario Human Rights Commission, April 7, 2016. 5 Policy. 6 Waggott & Rankin, Medical Marijuana in the Workplace: Risks for Employers, McMillan LLP, 2014, 2. 7 Policy. 8 Waggott & Rankin, 3. 9 See 2014 Ontario Workplace Safety and Insurance Appeals Tribunal (ONWSIAT) 142; 2016 ONWSIAT 2104; 2012 ONWSIAT 1849; and 2010 ONWSIAT 1231. l 10 Waggott & Rankin, 2. 11 Ibid., 3. 12 Canadian. 5