Drastic changes to legislation around cannabis including Bill C-45 have left many business owners in the dark about how to deal with the use of cannabis in the workplace. Our research has revealed some critical questions for which business owners urgently need answers. For example:
- If an employee is a medical user, as the employer must you accommodate the employee no matter what?
- If you catch an employee under the influence of cannabis on the job, can you terminate them?
- How does the concept of undue hardship relate to cannabis use and what should employers be aware of?
Bill C-45 and Cannabis in the Workplace
The unknowns around the Bill C-45 legislation are leaving business owners feeling uncomfortable, helpless, and not in control. Business owners who do not handle these situations correctly are finding themselves mired in unforeseen legal issues and costly employee entanglements.
In this article we will demystify the usage of cannabis in the workplace. We will explain why the usage of drug testing is not relevant. And we will address when and how to use drug testing.
Cannabis may not be a Gen-Y issue
According to the Human Resources Professional Association (HRPA), 22% of the current Canadian adult population are consuming cannabis regularly; and 17% are stating that they will try it when Bill C-45, the Cannabis Act and Cannabis Regulations come into force on October 17, 2018. Cannabis has grown to become a part of a regular consumption pattern for many age groups, not unlike the common consumption of wine, beer and spirits. We like to relax with a drink, a joint or both.
Cannabis use: impairment and detection in the workplace
If you order a drug test with insufficient evidence that the employee failed to do his duties because of drugs, or if you did not provide an explanation to the employee for why you are undertaking a drug test, you can end-up having to re-instate the employee. In fact, current human rights law does not permit pre-employment or random drug testing for use or impairment. If you are an employer, you are probably asking how you will know if your employee is high? And what should you do if you catch the employee high at work.
Studies have shown that there does not seem to be a pattern in the amount of THC in a person’s system when they have been determined to be impaired, as people seem to be affected differently. In fact, current drug testing cannot sufficiently determine the extent of cannabis impairment. The reality is that without a reliable method for measuring impairment, employers may have issues making disciplinary decisions in these situations.
Tara Vasdani, from McDonald and Associates is suggesting rolling out a scent-free policy, much like alcohol. Employers have always had the ability to impose fragrance-free/scent-free environments. In fact, employers have the right to discipline employees who emit extensive body odour, causing discomfort and upset among employees in the workplace. It would therefore be prudent to contemplate this alternative to spot the usage of cannabis for non-edible consumption in the workplace until such time that drug testing becomes more sophisticated.
Employers have a duty to accommodate medical cannabis users
Employers remain legally responsible for providing a safe workplace, which includes taking steps to ensure individuals who are impaired or whose ability to work is affected by cannabis do not remain on the work site.
Employers have a duty to accommodate employees who are legally using medicinal cannabis, to the point of undue hardship. “If approached by an employee seeking accommodation relating to the use of medicinal cannabis, employers should first confirm the employee’s use is medically and legally authorized. Employers may require the employee to provide documentation of such authorization.” says Julian Frank from Dentons.
If the medical information reveals that the employee would be impaired while working, then the employer is likely not required to accommodate the employee’s request, especially if the employee is in a safety-sensitive position.
If accommodation is required, the employer must consider the following:
- Should the employee be allowed to smoke in the workplace?
- Could the employee ingest the cannabis in a different (legal) form?
- Who at the company must know of the employee’s use of medical cannabis?
- Are there other suitable options to medical cannabis?
- Does the employee’s condition require the use of cannabis products containing THC?
An employer does not have to accommodate employee preferences in relation to cannabis use if it would result in undue hardship to the employer. Undue hardship may be proven more easily in a safety-sensitive workplace (such as construction), but the risk of a human rights complaint is possible. This is more of a concern with medical cannabis use, since a prohibition on recreational use may be comparable to a prohibition on alcohol.
Workplace cannabis use falls within a safety first framework
The use of medical marijuana in the workplace is governed by provincial health and safety legislation. Under the Ontario Health and Safety Act, for example, employers are charged with taking “every precaution reasonable in the circumstances for protection of a worker.” This means employees do not have the right to be impaired in the workplace where that impairment may endanger their own safety or that of their co-workers.
“A common mistake that some employers make in accommodating medical marijuana is assuming using it will impair the employee’s ability to do the essential duties of their job.” Says Parisa Nikfarjam, employment lawyer. If the employer disciplines or dismisses the employee without using progressive discipline or attempting to accommodate, they may be found to have discriminated against the employee on the basis of a disability. While employers should not go looking for substance abuse problems, they should ensure that their progressive discipline policies cover situations like these.
This overview is geared to assist business owners in being more prepared to deal with Cannabis in the workplace. If you are facing cannabis use issues in your workplace, or have questions about the new Bill C-45, set up a call with Aline Ayoub and get accurate advice on your options in managing this emerging, complex issue.