Michael Ford (post until Oct. 31/19)
Employment & Labour, Human Rights

Cannabis-related human rights claims on the horizon

Toronto employment lawyer Doug MacLeod tells Law Times it’s likely the courts will see more human rights challenges related to claims an employer failed to accommodate marijuana addiction issues or cannabis use disorder, which is a recognized disability.

On Oct. 11, the Ontario Human Rights Commission (OHRC) released a new policy statement around human rights implications of cannabis legalization at work, in housing and in public places, as well as a guide as to when there is a duty to accommodate its use, the article says.

“It addresses cannabis use in public parks, retail stores, restaurants, schools, hotels, hospitals, retirement homes, balconies, condos, apartments and workplaces,” the online legal news outlet reports.

“Being a recreational cannabis user doesn’t give you any human rights protection; it’s only when it rises to the level of an addiction,” says MacLeod, principal of MacLeod Law Firm.

“I think that when people get fired, they go to talk to a lawyer, and the lawyer comes up with different potential legal claims. I think this will be a new potential claim that lawyers will try out,” he says.

Bringing such cases to trial may take years, depending on the court’s expectations around medical evidence and experts, MacLeod says. Because many employees won't be able to afford the cost of medical experts, he expects many claims to play out in grievance arbitration, with unions potentially filing grievances on behalf of their members.

If the court doesn’t require extensive evidence, MacLeod says cannabis-related addiction could become a “staple claim” in employee termination cases when an employee is terminated for using cannabis at work or being impaired because of cannabis use at work.

“We’ll find out from the courts how easy it is to make out this claim,” he says.

“What evidence of addiction do you have to lead? What signs of addiction are needed to impose a duty to inquire on the employer?”

Smoking and vaping — including tobacco and medical or recreational cannabis — are banned in the workplace, according to OHRC regulations, but employers can accommodate employees by allowing breaks outside, the article says.

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