Employment & Labour

Human Rights Commission releases updated policy before pot legalization


Ontario's Human Rights Commission is trying to adopt a balanced approach to protecting the rights of both employers and employees in regard to marijuana use in the workplace, Toronto employment lawyer and mediator Stuart Rudner tells AdvocateDaily.com.

Employers are required to do what they can to accommodate medical marijuana users as well as those addicted to pot but that doesn't give employees carte blanche to show up at work stoned, the commission says.

“They are clearly trying to adopt a balanced position and protect the rights of both employers and employees. Obviously, that is never easy as those rights are often in conflict,” says Rudner, founder of Rudner Law.

“They are also trying to balance the rights between those who use cannabis, either recreationally or medicinally, and those who may be negatively impacted by it, either by the smell, or by the potential safety issues.”

In its updated policy guidance ahead of next week's legalization of recreational weed, the commission says employers can expect workers to be sober at work, particularly in safety-sensitive jobs, reports the Canadian Press.

``Accommodation does not necessarily require employers to permit cannabis impairment on the job,'' the document states. ``The duty to accommodate ends if the person cannot ultimately perform the essential duties of the job after accommodation has been tried and exhausted, or if undue hardship would result.''

Ultimately, the commission said, the looming change in the law has no impact when it comes to human rights.

``The legalization of cannabis is a new reality in Ontario,'' Renu Mandhane, the province's chief commissioner, says in a release. ``But while cannabis laws are changing, this policy statement reminds us that human rights protections for people with disabilities or addictions are the same.''

As is currently the case involving alcohol or other drugs, the rights code protects people with disabilities who use cannabis for a medical purpose from harassment and other discriminatory treatment in employment, housing and service delivery.

However, a provincial ban on smoking tobacco in enclosed spaces at work applies equally to smoking or vaping marijuana — whether medical or recreational.

Still, employers must allow workers who smoke or vape cannabis for medical purposes related to a disability to take breaks so they can go outside to spaces where smoking is allowed, the commission's policy states. Employees can also use edible cannabis for a medical purpose at work but must be able to do their jobs properly, the policy says. A doctor's note might be required.

“I have been leading conferences and discussions on the issue of cannabis in the workplace for the last few years, and we are constantly discussing this balance. Employers have a duty to accommodate medicinal cannabis, like any other medication, but that duty extends only to the point of undue hardship,” says Rudner, who specializes in employment law.

“Usually, when we discuss undue hardship we are talking about cost. In this context, we are talking about safety. I cannot imagine a scenario where an employer will be required to provide an accommodation that will cause a risk to the safety of the user, his or her colleagues, or anyone else. For example, a truck driver may have a legitimate need to use medicinal cannabis, and that might have to be accommodated. The accommodation might include rescheduling his shifts, but would not involve allowing him to get behind the wheel if he is impaired. And in many cases, it is possible to use cannabis without any impairment, so there will be no need for accommodation.”

While drug testing might be appropriate for certain positions, the commission warns the tests must be designed to prevent discrimination against people who use cannabis for a medical purpose related to a disability or who are addicts.

When it comes to rental and condo units, the commission notes that people can as a rule smoke, vape or consume edible cannabis at home — whether inside or on their balconies. The exception is where laws or rules currently ban tobacco smoking or vaping — such as in common areas — for public health reasons.

``Smoke or vapour from recreational or medical cannabis might negatively affect other building residents, including people with chemical sensitivities and other disabilities,'' the document says. ``Housing providers have a legal duty to look for solutions.''

Additionally, a landlord or condo board has the authority to ban pot smoking in residential units, balconies and terraces — unless it involves someone with a disability. In those cases, the duty to accommodate is triggered.

What is likely to run afoul of the code is banning pot smoking in places where people are allowed to smoke cigarettes, the commission says.

— with files from AdvocateDaily.com

© 2018 The Canadian Press

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