This memo is a response to the inquiry made previously about the current state of the law concerning marijuana use in the workplace. I have reviewed some recent and Ontario Human Rights Commission publications to provide relevant information concerning rights and obligations relating to cannabis use. Before delving into detail, I want to state that cannabis legalization on October 17, 2018, has not changed how the Ontario Human Rights Code’s policies apply to marijuana.
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Cannabis is still considered a drug and is treated similarly to alcohol and tobacco. However, medical marijuana use and addiction to the substance is treated as a disability; therefore, employers cannot impose consequences before offering accommodation for marijuana consumers. This memo provides an up-to-date explanation of the problem and suggests a guideline for the HR department to use while addressing the issues concerning cannabis-related issues.
Employer’s Rights and Duties
As mentioned above, marijuana is still considered a drug, and Ontario Human Rights Commission prohibits smoking and vaping the substance in enclosed workplaces. Edible cannabis can be used for medical purposes only if it does not interfere with the company’s health and safety standards or performing the essential duties (Cannabis legalization para. 75). Moreover, employers can expect their workers to be free from the consequences of marijuana use while at work. Impairment from cannabis at the workplace related to a disability may also be prohibited if it prevents a worker from attending to his or her duties.
For example, in a recent court case, Aitchison v. L & L Painting and Decorating Ltd., the employee was found unable to perform his obligations due to the effect of consuming marijuana (37). Mr. Aitchison worked as a seasoned painter and was seen smoking cannabis at work on a swing stage outside the 37th floor (Aitchison v. L & L Painting and Decorating Ltd. 4). Even though the doctor prescribed the drug, the job was safety-sensitive, and the employer demonstrated zero tolerance for taking drugs. The court stated that Mr. Aitchison’s employment was lawfully terminated (Aitchison v. L & L Painting and Decorating Ltd. 36). In summary, while it is strictly prohibited for employees to use recreational cannabis, impairment from smoking medical cannabis is acceptable only in non-safety-sensitive jobs.
Employers are obliged to accommodate the disability-related needs of employees using medical cannabis or who are addicted to cannabis use. For instance, in Saunders v. Syncrude Canada Ltd., the employer failed to attend to the accommodation needs of the worker and was imposed to pay a remedy of over $40,000 in remedies (36). Mr. Saunders suffered from severe headaches classified as a disability that resulted in the poor attendance of approximately 60% (Saunders v. Syncrude Canada Ltd 8).
Syncrude Canada Ltd. has shown no intention of accommodating to the employee’s needs, and the court found no evidence “that Syncrude faced any special hardships that would affect its ability to accommodate in this instance” (Saunders v. Syncrude Canada Ltd. 25). In short, companies must attend to the needs of the workers with disabilities, including medical marijuana consumers and people suffering from cannabis addiction.
Employers must try to reduce any risks as a part of the accommodation process. This may include a change in job duties or even an alternative work offer with a comparable income level to attend to the individual needs of an employee with a cannabis-related disability. Companies may also allow extended or additional breaks for edible cannabis use or medical marijuana smoking inappropriate places. Another way of addressing the issue is by providing time off for the attendance of rehabilitation programs (Questions and answers para. 17). In short, there are some appropriate ways to adapt to the work environment to make it more suitable for people with marijuana-related disabilities.
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Employee’s Rights and Duties
Employees must discuss with their doctor whether them having cannabis addiction or using medical marijuana can interfere with workplace health and safety or the performance of essential duties. Workers are generally expected to know about the fact; however, employers must routinely address their staff in safety-sensitive positions, reminding them that they are to disclose any information concerning marijuana use (Questions and answers para. 41). The practice helps to build a healthy and trusting environment in the workplace.
Employees using cannabis for a medical purpose must report to the employer about his or her needs for accommodation. Moreover, the worker must provide medical or other information to support a disability-related need (Questions and answers para. 25). French v. Selkin Logging can serve as an excellent example for the issue, as it shows how an employee’s failure in providing evidence that he needed a marijuana treatment for his pain can result in a lawful termination of his employment. In the case, Mr. French claimed that the doctor prescribed marijuana use for his severe pains after cancer (French v. Selkin Logging 33). The cannabis consumption resulted in a company’s property damage, and Selkin Logging dismissed Mr. Selkin from his duties (French v. Selkin Logging 33).
On the one hand, employees are obliged to inform their managers if they need accommodation because of marijuana use, but on the other hand, the workers have the right to privacy as much as possible. The cannabis consumer must provide an official medical document from a health care provider proving that his or her state of health demands marijuana use. However, the employee can avoid disclosing details about his or her condition or even name it (Questions and answers para. 25). In short, employees must provide information about their need for accommodation but only up to a certain degree.
It is also worth mentioning that employees may fail to recognize or disclose the information concerning their disability. While this behavior is considered inadmissible, the employer must inquire if the worker is clearly unwell or is perceived to have any marijuana-related disability. In summary, the employees have the obligations to know about their disability and inform the company about the matter; however, the employer must remind him or her about the duty.
The Best Practice
The best way of addressing the matter with cannabis use along with any other drug abuse at the workplace is by creating a trusting and supportive environment for those affected by substance use issues. However, while doing so, the employer must also demonstrate that impairment from marijuana use at work shall not be tolerated. Our company should show a shift from disciplinary measures towards practices supporting treatment, recovery, and accommodation. We must also realize that the key to success in the matter of reducing marijuana use affecting workplace productivity lies in employees’ engagement in treatment and a commitment to recovery. Thus, it is the company’s responsibility to encourage its workers to cooperate on the matter by creating comprehensive substance use guidelines.
Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238. Human Rights Tribunal of Ontario. Web.
Cannabis legalization. Government of Ontario. 2018. Web.
French v. Selkin Logging, 2015 BCHRT 101. British Columbia Human Rights Tribunal. Web.
Saunders v. Syncrude Canada Ltd., 2013 AHRC 11. Alberta Human Rights Commission. Web.
Questions and answers on cannabis and the Human Rights Code. OHRC. 2018. Web.