Cannabis in the Workplace

TORRES, Mario

The context in Canada relating to both medical and adult-use cannabis is changing. Medical cannabis use has been increasing dramatically, from approximately 7,900 users in Canada in 2014, to approximately 296,702 in 2018.  Adult-use of cannabis will also be legal in the near future, with the development of the Federal Cannabis Act and there is an expected increase in use across the country.

Legalization of adult-use cannabis is expected to increase access and reduce the negative stigma associated with cannabis. With both medical and adult-use cannabis projected to increase in the coming years, the question is: how do we deal with this change in the workplace?

Consumption of adult-use of cannabis in Ontario will be prohibited in the workplace and restricted to private residences by Ontario’s Cannabis Act. Smoking or vaping in the workplace, including medical cannabis, is set to be prohibited in the workplace by the Smoke-Free Ontario Act (though there are some exceptions).

Despite these restrictions, issues will still likely arise. What about an individual that consumes cannabis prior to coming to work who may or may not be impaired? Or medical cannabis users that consume cannabis at work via a non-smoking method such as a topical cream or edible? Or low-dose THC use? Or consumption of CBD (a cannabinoid – a compound found in cannabis – which is used to treat patients)? Employers have an obligation to create a safe work environment, which they can discharge in relation to cannabis by prohibiting impairment in the workplace. In addition, employers have the right to insist that employees not be impaired at work. Sources of rules employers may use for disciplinary actions include: collective agreements; workplace policies; legislation; and the common law. However, an employee’s consumption of cannabis in the workplace may be protected by law.

Accommodation

Accommodation in the workplace may be required under the Human Rights Code of Ontario, unless doing so would cause undue hardship upon the employer. Either a prescription for medical cannabis use, or a cannabis dependency, are likely to trigger accommodation requirements. Absent establishing undue hardship, an individualized accommodation plan will need to be developed for any employees who may require them.

Accommodation of workplace cannabis use will be more prevalent in non-safety sensitive positions. In safety sensitive positions, there will be a stronger argument for undue hardship on the employer with respect to attempting to accommodate an employee who may be impaired in the workplace. Regardless, to allow for an individualized accommodation plan, an employer must be aware that there is a need for such plan to begin with. Workplace policies, therefore, may require disclosure of a medical prescription or dependency on cannabis. Failure to comply with policies should have associated penalties for violating the policy, up to and including – potentially – termination of employment.

It is also important to remember that not all forms of cannabis consumption lead to impairment.

Determining Impairment

Generally, employers should not be focused on identifying cannabis use, but rather on preventing impairment in the workplace. Generally, in non-safety sensitive positions the employer will not have the right to test its employees.

For safety sensitive positions however, testing may be used in limited circumstances. For example:

  • Reasonable cause to suspect an employee is impaired on the job;
  • Significant accidents or ‘near-miss’ incidents; and,
  • As part of a ‘Return to Work Agreement’ or Minutes of Settlement.

It’s much easier to proceed with testing when contemplated by a workplace policy or included in a collective agreement. Random testing, however, is very rarely permitted.

The judge in ATU, Local 113 v Toronto Transit Commission (2017 ONSC 2078) accepted a test of 10 nanograms of THC in one millimetre of saliva as being indicative of cannabis use in the previous four hours; the judge accepted that cannabis use in the previous four hours meant a likelihood of impairment. However, an arbitrator in Newfoundland recently decided – relying on current information published by Health Canada –  that a person who consumes cannabis may be impaired for up to twenty-four hours after consumption.  Evidently, testing for cannabis impairment is very much a live issue, and we will likely see development in the coming years as the science behind the issue is furthered. In addition, we will likely see the per se limit established for driving while impaired be relied upon in the workplace context.

Closing Thoughts

Employers should be aware of the differences between safety sensitive positions and non-safety sensitive positions when developing accommodation plans. The way employers may test for impairment, standards for accommodation plans, and the prevalence and effect of cannabis use in the workplace are all issues that are in flux. Until clear jurisprudence is developed, employers should focus on ensuring that the workplace is safe for everyone while at the same time preventing the breach of an employee’s human rights.

Employees should be aware of their privacy and human rights, but also of their obligation to refrain from attending the workplace while impaired and the duty to follow the reasonable and lawful instructions of their employer – including following workplace rules and policies.

For assistance in navigating this changing landscape or for further information, please contact mtorres@brazeauseller.com.