Medical marijuana and workplace intoxication
By Bram Lecker and Jordan Reiner
Marijuana is now legal in Canada. As planned, Bill C-45 (The Cannabis Act) became law on October 17, 2018. And with it, Canadian employers must adapt to the reality of cannabis use by their employees, both recreationally and medically.
The nuances of the medical use of marijuana first made headlines back in 2013. The RCMP stripped a veteran officer of his uniform for smoking marijuana in public. His doctor had prescribed the drug for Post Traumatic Stress Disorder (PTSD). To raise awareness of the stigma of PTSD, the officer smoked marijuana in public while dressed up in his red serge. The RCMP took exception to this action. Very sadly, the officer committed suicide shortly after the discipline hearing. This incident magnified the emotionally charged nature of medical marijuana in the workplace. It also highlighted the dire need for both employers and employees to manage the issue with sensitivity, tact and prudence.
Cannabis by prescription
Canadian physicians are prescribing Cannabis with increasing frequency for pain, disability and chronic illness. Furthermore, insurance companies are starting to accept its efficacy for medical purposes. In fact, on March 1, 2018, Sunlife Financial started covering medical marijuana in their group benefits plans.
Accordingly, with easier access to this drug, could workplaces encounter more cases of marijuana intoxication? Our current laws permit your employer to fire you if you are intoxicated while on duty, particularly if it is related to a safety issue. And in this case, they do not have to offer you notice or severance pay.
Workplace intoxication & duty to accommodate
With medical marijuana, however, the issue is presently complicated. Once legalized and prescribed for medical use, your employer must treat this like any other prescription drug.
The Ontario Human Rights Code requires your employer to accommodate your disability unless they can prove it will cause them undue hardship. Drug and alcohol addiction are recognized illnesses. For violating this law, your employer can face a variety of sanctions. These include paying you damages or reinstating you back to your job with back pay.
On the other hand, sensible employees must understand that they do not have carte blanche to show up intoxicated at work. In fact, Ontario’s Occupational Health and Safety Act require employers to make the workplace safe for everyone. This is particularly important if you drive or operate equipment. Being intoxicated at work, especially if you hold such a position of responsibility, will likely be grounds for a just-cause dismissal.
Just-cause (for-cause) dismissals
In a not-for-cause termination, your employer must provide you with notice or compensation in lieu of notice. The amount is based on a variety of factors which include your age, length of service, position and employability. Generally, it is quite difficult for employers to prove misconduct in order to meet the test of “cause” in a just-cause dismissal. When they do, however, it can deprive you of all your severance entitlements.
This was at the heart of the issue in this case. The employee, with 23 years of service, operated a company vehicle while intoxicated. The resulting accident caused him significant injuries and substantially damaged the vehicle. When he objected to his subsequent for-cause dismissal, the courts concluded that he had read and agreed to the company rules, outlined in the employee booklet, of not consuming alcohol while on duty. They found his conduct was harmful to the employer’s business. Accordingly, they upheld the for-cause termination.
Disclosing medical marijuana use
With the pending legalization of marijuana, it is now more important than ever for you to disclose your disability to your employer if you are a user of medical marijuana. Sensitive employers will explore all avenues to accommodate you. This could involve a temporary paid leave of absence, an alternative position or retraining for a new job.
At the same time, you should also be aware of certain limits to workplace accommodation. If your condition is severe enough to indefinitely prevent you from performing your essential duties, your employer may legitimately not keep your job available for you. In this case, they could claim “frustration of the employment contract.“ Some may terminate you with the minimum entitlements the law permits under the Employment Standards Act, 2000.
Failure to accommodate
Unfortunately, the stigma of marijuana use suggests some employers will refuse to engage in any meaningful discussions about it, medical or not. Other employers may frustrate you into quitting or fire you shortly after you disclose.
If you were let go under these circumstances, with no attempts to accommodate your disability, then rest assured that your employer cannot act with impunity. This is a serious matter. You require the services of an experienced employment lawyer to litigate your case for wrongful dismissal and human rights law violation.