The topic of Marijuana at the workplace is of particular importance nowadays.
On July 1, 2018, the Canadian government plans to introduce an amendment to Bill 174, the Cannabis Act, which will decriminalize the purchase and possession of marijuana.
In the employment context, marijuana can provide new barriers for employers and employees to navigate, specifically regarding disabilities, the duty to accommodate and workplace policy.
Duty to Accommodate
Currently, the Ontario Human Rights Code (“Code”) protects individuals from adverse treatment in employment due to drug use and addiction issues. In fact, drug addiction is recognized as a disability under section 5(1) of the Code, even though it can be difficult to establish and recognize. As with any other disability under the Code, employers must accommodate drug use or drug addiction to the point of undue hardship.
In the event marijuana possession becomes legal, what could theoretically change in the employer’s duty to accommodate? Perhaps not much. Employers are already required to accommodate employees who have drug addiction issues, and who use prescribed drugs, and the criminal or non-criminal nature of the drugs has no impact on that duty.
To ensure employers accommodate employees properly, the Code prohibits employers from, among other things, disciplining employees for drug addiction, carrying out unfair drug testing, and stigmatizing employees for their addictions. Because marijuana use can create varying levels of impairment, the Code also prohibits employers from perceiving employees as disabled just because they consume the drug.
However, an employer will be justified in questioning an employee’s level of impairment where the employee’s role requires attention to safety or extensive mental concentration. For example, a doctor would be prohibited from performing work while impaired due to the health and safety risks associated with the role, and the duty to care for patients. The same principle would apply to a Truck Driver or Construction Worker and Labourer.
While the non-criminal nature of marijuana will not alter the duty to accommodate, employers would be wise to prepare for the potential influx of accommodation requests that may occur. The potential increase in marijuana consumption may increase the number of employees seeking accommodation.
Despite the potential for an increase in accommodation claims, employers are not without recourse. The legalization of marijuana does not suddenly mean employees will be able to attend work intoxicated, especially if their duties require the operation of sensitive materials, attention to safety, or the supervision of employees, among other things.
In the event complete sobriety is a necessary component of the role in question, employers will still be able to argue sobriety as a bonafide occupational requirement (“BFOR”). In circumstances where the nature of the role might be violated by drug impairment, employers may be able to argue undue hardship.
Given the variety of jobs and roles in existence, the duty to accommodate drug use is one which will have to be applied differently in each scenario.
With the legalization of marijuana, employers will have to revise their respective policies. For example, a policy that used to prohibit intoxication through alcohol will now have to specifically include marijuana. In addition, policy referring to marijuana as “illegal” will also require amendment.
Although drug testing is sometimes necessary, any drug testing will still have to be conducted fairly and based on reasonable grounds and suspicions.
Apart from revising policy, employers may also have to train staff to deal with marijuana use, and may have to ensure the work environment remains receptive and sensitive to the issue.
Whether you are an employer or employee, the legalization of marijuana may affect your rights at the workplace. As always, our lawyers here at Achkar Law will be happy to answer any questions you may have regarding Bill 174.
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