Cannabis in the Workplace: Are the old rules up in smoke?

Cannabis in the Workplace: Are the old rules up in smoke? Presented by: Michael Donsky Partner June 15, 2018

Status of Cannabis in Canada Cannabis is about to be (almost) fully legalized As of last week, the government's bill legalizing recreational use of cannabis passed third reading in the Senate It has this week returned to the House of Commons where Liberal MPs decided which amendments to accept and which to reject (many were not accepted) 2

Current Legal Status Until the new legislation passes: Non-medical use is illegal Medical use is only allowed owing to an exemption from the Criminal Code (visual courtesy of Department of Justice http://www.justice.gc.ca/eng/cj-jp/marijuana/info.html 3

Current Legal Status Canada legalized Cannabis for medicinal use in 2001 It been a commonly prescribed medication since then. According to a poll by Deloitte*: 22% of the Canadian adult population consumes recreational cannabis on at least an occasional basis. A further 17% show some willingness to try it if it were legal In total, that is close to 40% of the adult population 4

How will Legal Status Change? The proposed Cannabis Act will create a legal framework for the sale and possession of marijuana for recreational purposes in Canada. Possession, use, cultivation and sharing in small amounts for personal recreational purposes will be legal. Some believe that a major increase in consumption of cannabis for recreational purposes will occur postlegalization. 5

According to a poll by Deloitte*: 22% of the Canadian adult population consumes recreational cannabis on at least an occasional basis. A further 17% show some willingness to try it if it were legal In total, that is close to 40% of the adult population 7% of the adult population consume on a daily basis *Deloitte. 2017. Recreational Marijuana Insights and Opportunities. Accessed at: https://www2.deloitte.com/content/dam/deloitte/ca/documents/analytics/ca-en-analytics-deloitte%20recreational%20marijuana%20pov%20- %20ENGLISH%20FINAL_AODA.pdf 6

So What Happens Once Cannabis is Legal? There are expectations that overall use may increase once cannabis is legalized much as alcohol use increased with the end of prohibition.* As a result, what ever instances there are already with cannabis use already, and whatever problems currently exist, employers may have to be more vigilant as there may be increased use. *https://www.nytimes.com/1989/10/16/opinion/ actually-prohibition-was-a-success.html Image from https://addictiondoctor.org/ can-we-just-get-rid-of-the-drug/ 7

So What Happens Once Cannabis is Legal? But, from a legal standpoint as an employer Really very little changes 8

Almost Nothing Changes? The situation that exists, from an employment law perspective, does not change much if cannabis is legal or illegal The challenges and obligations on the employer remain largely the same 9

So, then, what are the challenges and obligations??? 10

A number of laws come into play Of primary importance are the following: Ontario Human Rights Code Smoke Free Ontario Act Occupational Health & Safety Act Cannabis Act, 2017 11

Smoke Free Ontario Act The Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3 applies and Regulates smoking and vaping; Includes application to medical cannabis; Will certainly include recreational cannabis; Smoking (of any substance) is not allowed in: An enclosed public place; Inside; Covered by a roof; Area to which public is ordinarily invited cont. 12

Smoke Free Ontario Act Also not allowed in: An enclosed workplace; Covered by a roof; Place employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time; Not a private dwelling 13

Smoke Free Ontario Act One may not use recreational cannabis in: any public place Workplaces motorized vehicles 14

Cannabis Act, 2017 This Act is not yet in effect and might change under new government; Amongst other things, it limits where cannabis can be used: 11 (1) No person shall consume cannabis in, (a) a public place; (b) a workplace within the meaning of the Occupational Health and Safety Act; (c) a vehicle or boat; or (d) any prescribed place. 15

Workplace under OHSA workplace means any land, premises, location or thing at, upon, in or near which a worker works; 16

Ontario Human Rights Code Human Rights Code s. 5(1) 5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of disability. This leaves predominantly two issues to deal with directly related to the Code: Accommodation of cannabis use related to a disability: through prescription (or medically authorized); through a drug dependence. 17

Ontario Human Rights Code Employers are required to accommodate disabilities to the point of undue hardship The main problem (other than compliance with Smoke Free Ontario Act), is that Cannabis is typically an impairing substance. 18

Ontario Human Rights Code The effects of Cannabis use can include: Diminished cognitive function including» memory loss» confusion and» difficulty concentrating Each of these issues can have an impact on the employee s ability to work safely, effectively and respectfully. 19

Ontario Human Rights Code Accommodation of Prescription use of Cannabis use must be regulated so that it does not violate other laws (e.g. Smoke Free Ontario Act) However, except possibly in safety sensitive workplace, some accommodation is likely possible 20

Accommodation 24 (1) The right under section 5 to equal treatment with respect to employment is not infringed where, (b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment; 21

Undue Hardship Standard Use of cannabis by and employee may engage the employer's duty to accommodate employee disability to the point of undue hardship. There are a number of accommodation issues because cannabis it is both potentially addictive and potentially therapeutic. 22

Accommodation The accommodation process should help the employer understand: The reasons for the employee's cannabis use; medical? Addiction? Whether the employee has a protected disability; is it the reason for treatment? Is the use an addiction (and therefore a disability? cont. 23

Accommodation The limitations placed by the disability or prescribed treatments on the employee s ability to work safely and effectively. Appropriate accommodations should put the employee on a path to a safe and healthy return to work (subject to the undue hardship standard) Note: if a problem occurs prior to any disclosure of the need for accommodation, the employer may be in a position to dismiss the employee anyway.* * Aitchison v. L&L Painting and Decoration (2018 HRTO 238) 24

Aitchison v. L&L Painting and Decoration Decision of the Human Rights Tribunal in February 2018 Applicant was a seasonally employed painter of high-rise buildings; He smoked cannabis to treat a back injury, but also smoked recreationally He worked for a sub-contractor but the subcontractor s work must be in compliance with the General Contractor s health and safety policies. General Contractor s had a zero tolerance policy towards use of intoxicating substances at the site. Applicant was found smoking cannabis on site and was confronted by his supervisor about his marijuana use at work 25

Aitchison v. L&L Painting and Decoration Tribunal found: the zero tolerance policy was reasonably necessary to accomplish its purpose, to protect the health and safety of the worker and the public. The policy did not impose automatic termination as a condition but it did require removing the employee from the job site if he or she is intoxicated. Zero Tolerance Policy was not mechanically applied It did not close the door to accommodating employees who use medical marijuana although it might restrict such accommodation to non-safety sensitive jobs 26

Aitchison v. L&L Painting and Decoration There was no evidence that the applicant requested any accommodation with respect to his marijuana use. The applicant unilaterally used marijuana at work without authorization from either his employer or his treating physician As noted by the tribunal, It is difficult to conclude that the respondent failed to accommodate a request that was never made. The Applicant was terminated for breach of the zero tolerance policy 27

Aitchison v. L&L Painting and Decoration The zero tolerance policy adopted by the respondent was found not discriminatory the applicant, through his own actions, provided the respondent grounds to terminate his employment. The tribunal found no evidence to support the applicant s claim that the respondent s actions were discriminatory in any way. 28

Two more Human Rights Code thoughts 1. The Duty to inquire What if an employer has reasonable grounds to suspect that a disability may be involved in prohibited cannabis use or impairment at work There may be a duty to inquire about the potential need for accommodation before resorting to discipline. 29

Two more Human Rights Code thoughts 2. Duty to cooperate What happens once accommodation of a cannabis-related disability has been requested? It is not a one way street the employee has a duty to cooperate with the employer's efforts. The employer has the right to expect production of medical evidence of disability, a prescription for cannabis use and evidence supporting appropriate accommodations 30

Workplace Safety Employers must exercise due diligence in mitigating workplace health and safety risks As a result, employers are obligated to minimize the risks caused by employees who are impaired by cannabis at work The obligation is even more important in safetysensitive workplaces (e.g. those that involve machinery, transportation, environmental risks, and so on such that a mistake could potentially have deadly or catastrophic consequences 31

Occupational Health & Safety Act Under OHSA employers have the greatest responsibilities with respect to health and safety in the workplace. At the same time, all parties have a role to play to ensure workplace health and safety requirements are met 32

Occupational Health & Safety Act Internal Responsibility System ( IRS ) underlying philosophy of the occupational health and safety legislation in all Canadian jurisdictions. everyone in the workplace - both employees and employers - is responsible for his or her own safety and for the safety of co-workers everyone has direct responsibility for health and safety as an essential part of his or her job. They achieve health and safety in a way that suits the kind of work they do. Source: https://www.labour.gov.on.ca/english/hs/pubs/mining/syn_minirs_2.php 33

Employer Responsibilities under OHSA responsible for taking every reasonable precaution in the circumstances for the protection of a workers Responsible for setting up Internal Responsibility System 34

Supervisor Responsibilities under OHSA responsible for making workers fully aware of the hazards on the job and in the workplace; ensuring that they work safely, responding to any of the hazards brought to their attention, including taking every precaution reasonable in the circumstances for the protection of a worker. 35

Worker Responsibilities under OHSA Reporting hazards in the workplace; working safely and following safe work practices; using the required personal protective equipment participating in health and safety programs established for the workplace. 36

Health and safety representatives or Joint Health and Safety Committees Responsibilities under OHSA assessing the effectiveness of the IRS. helps to stimulate or raise awareness of health and safety issues in the workplace recognizes and identifies workplace risks develops recommendations for the employer to address these risks 37

Testing for Cannabis Testing raises both privacy and human rights issues Generally, it can only be justified in safety-sensitive workplaces. Even in such workplaces, testing must still be justified in the context of the workplace or a particular incident. 38

Human Rights Commission Position on Drug Testing Testing before the job testing is done as part of the initial applicant screening process The Commission take the position it is prohibited under subsection 23(2) of the Code. They believe it directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination 39

Random Testing for Cannabis Generally impermissible Drug testing at present does not distinguish between past use and present impairment Right to privacy issues 40

Testing for Impairment Drug and alcohol testing in Canada has typically been restricted to: reasonable cause post-incident return to work from rehabilitation 41

Testing for Cannabis However it might be permissible in some circumstances where there is a dangerous workplace: The employees are safety sensitive There is reasonable cause 42

Testing for Cannabis (cont.) It is post-incident The employee is post-treatment There is an Out-of-control drug culture Irving Pulp & Paper, 2013 SCC 34 (dealing with alcohol testing) 43

Reasonable Cause Where there is good reason to believe an employee is impaired, testing may be permissible. It must be based on objective observations of the employee s individual behaviour Les Halter v. Ceda-Reactor Limited (2005) Alta. HRP (Bryant) 44

Reasonable Cause examples Seeing someone use alcohol or drugs at work An employee appears or acts in a way that is consistent with being impaired by alcohol or drugs (such as the person smelling like alcohol or drugs) Substances or substance paraphernalia in the vicinity of the employee or the area where the employee works (e.g. empty bottles 45

Post-Rehab Testing part of a drug and alcohol policy to help an employee who is back at work after having been accommodated for drug use. an employee returning to a safetysensitive job after treatment for alcohol or drug addiction, postreinstatement testing may be justified 46

Key Problem with Cannabis Testing Current testing technology cannot truly detect impairment only use in recent days or weeks Without proof of actual impairment, any testing may be found unjustifiable by an adjudicator 47

What Might Allow Drug Testing? According to the Human Rights Commission, drug testing might be allowed when the methods incorporate the following criteria Ability to measure current impairment High level of accuracy Minimal level of intrusion, and Rapid response time. 48

What Might Allow Drug Testing? (cont.) Those criteria might help employers justify random testing of employees where: There is a safety-sensitive positions as a bona fide requirement, staff supervision is minimal or non-existent; there is a demonstrated risk in the particular workplace the employer meets its duty to accommodate the needs of people with addictions who test positive. 49

Cannabis and Discipline Legalized of recreational cannabis aside, employer still has a right to: Prohibit impairment at work; Prohibit use, possession or sale of an impairing substance in the workplace; 50

Cannabis and Discipline But, any disciplinary response to cannabis misuse should be: Pursuant to clear workplace rules. Supported by an appropriate investigation. Proportional in the circumstances. 51

Drug and Alcohol Policies Employers should adopt or review drug and alcohol policies. The policies should be created with the following overall goals: Fostering awareness of drug and alcohol use, including cannabis; That includes both a potential workplace risk and a employee health issue. 52

Drug & Alcohol Policy Basics The policy should: Educate employees about the risks of drug and alcohol use. This may include policy language regarding risks and direct training. Communicate clear rules regarding workplace impairment as well as workplace use, possession and sale of impairing substances. cont. 53

Drug & Alcohol Policy Basics Inform employees of any investigations or testing that may occur with respect to employee drug or alcohol use or impairment. Describe the support and accommodation available to employees with drug or alcohol related disabilities, including addictions or medical conditions requiring use of impairing drugs. Inform employees of the disciplinary consequences for breaching workplace rules regarding drugs and alcohol. 54

Michael Donsky Partner Direct: 416.941.8849 Main: 416.864.9700 Toll Free: 1.866.861.9700 Fax: 416.941.8852 Email: mdonsky@foglers.com www.foglers.com 55