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Cannabis Use at Work

Q: How should an employer deal with cannabis consumption at work?

This is an interesting question because it underscores the need for employers to take time to consider a number of issues: (1) how cannabis differs, for example, from other legal potentially intoxicating substances; (2) the evolving science around medicinal cannabis, including delivery methods, dosage and impact; and (3) the interplay between occupational health and safety, human rights, and privacy legislation. Taking time to consider these issues in advance, and addressing them in policies and training with employees, is key to an employer mitigating operational, reputational, and legal risk.

That said, no matter what the challenges are to employers—including unforeseen events such as the pandemic and its impact on the workplace—the principles and obligations regarding health and safety in the workplace generally remain the same. When considering the consumption of cannabis at work, employers must understand their legal rights and obligations, so that if an employee is found consuming cannabis at work, appears impaired, or raises an issue around cannabis consumption that has a nexus to the workplace, the employer should determine: (1) if such consumption creates a safety risk in the workplace; (2) what steps should be taken to mitigate such risk; and (3), at the same time, what obligations it may have under applicable human rights legislation to accommodate an employee, if possible. This is a nuanced analysis that can be very challenging, especially in real time. Candidly, it is difficult for most employers to make a risk assessment without having considered these issues in advance. That is why it is important for employers to proactively develop policies and protocols to assess these issues.

An interesting and potentially complicated issue is what is the “workplace”, especially now, with so many employees working from home during the pandemic (more on that below). It may be that for some employees, the lines are blurred between what they do during their spare time, and what is expected of them at work or during working hours.

For that reason, employers should implement a drug and alcohol policy that sets forth the employer’s expectations, as well as prohibitions around consumption of intoxicants, including recreational cannabis, at work or while performing work, and the consequences of violation of that policy. When developing such a policy, employers need to think through and document the process for employees to come forward if they have a medical condition that requires them to take prescribed medication during work hours, including medicinal cannabis. This is even more important in a safety-sensitive environment—particularly if use or misuse (even innocently)—could lead to impairment during working hours.

Q: How does the landscape change if the employee has a medical prescription for cannabis?

Again, the employer must abide by its obligations under health and safety legislation. Therefore, if an employee comes forward to disclose that he has a medical prescription for cannabis, the employer will need to consider what information it may need to confirm whether that prescription will affect the employee’s ability to performing his role safely and efficiently. Employers should not be asking employees to disclose details about the underlying medical condition or disability. Ideally, this is a collaborative process with the employee and a medical expert. The employee also has a duty to participate and provide timely and accurate information to the employer.  Employers also have to consider the duty to accommodate to the point of undue hardship.

Unfortunately, there is still uncertainty regarding what the duty to accommodate medicinal cannabis means for safety-sensitive work environments, and this uncertainty is obviously very concerning for employers and the public. For example, on June 4, 2020, the Court of Appeal of Newfoundland and Labrador in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20  reiterated that the employer—in that case in a safety-sensitive environment—had a responsibility to accommodate a grievor who failed a drug test due to his consumption of medicinal cannabis to treat his chronic pain. The court held that the employer failed to accommodate the grievor to the point of undue hardship, and that accommodation has to be attempted and exhausted before employers can terminate employees due to undue hardship.

Q: What are an employer’s responsibilities with respect to COVID-19?

Many clients have expressed concern about how to help support employees and their mental health during COVID-19. Employers should ensure that employees are aware of resources available to them, such as employee assistance programs that may help employees address feelings of anxiety or isolation.

Employers should also draft (or update) their work-from-home policies on drug and alcohol use and impairment, especially when the employer cannot interact directly with employees as they would normally at the office.

Occupational health and safety legislation may apply to home workplaces, though there continues to be uncertainty over the application of occupational health and safety legislation for home offices in various provinces, including Ontario. However, human rights legislation and the duty to accommodate apply broadly for employees who work from home.

Sara Parchello is a Partner at Bennett Jones LLP. She has an employment and labour focused legal practice, with considerable understanding of the retail, hospitality, and mining industries.