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Weed at work: what employers need to know

Changes to Canada's drug laws won’t allow employees to be impaired at work any more than they did before legalization, but employers may have to accommodate workers who are prescribed medical cannabis, says Ottawa employment lawyer Ella Forbes-Chilibeck.

"People continually ask me if employees are going to be smoking up at work, and the answer is no," she tells AdvocateDaily.com. "Employees don't have the right to be impaired in the workplace."

Forbes-Chilibeck, the founder of Forbes-Chilibeck Employment Law, says she often hears from employers concerned about the planned implementation of the Cannabis Act in October.

The legislative changes make it necessary to review and update policies, procedures and employment contracts, but "there's no employer duty to accommodate recreational cannabis use" as the Act prohibits its use in the workplace, she says.

"I hear concerns from employers around edibles, how they will be able to ascertain if employees are impaired, and what right they have to ask," Forbes-Chilibeck says.

Drug testing in the workplace is limited to specific scenarios, usually involving a health and safety infraction, she says.

"When a drug test is administered after the fact, often it isn't proactive," Forbes-Chilibeck says. "I think much like there are smoke-free environments, that's where you bring in the idea around policies and procedures to address recreational cannabis use in the workplace and make it very clear that intoxication in any way is not appropriate in the workplace."

She says it may be difficult to determine if someone is impaired by a substance, including cannabis or a prescription drug.

"You may not know why someone is behaving aberrantly, but an employer has a duty to inquire," Forbes-Chilibeck says.

She suggests it would be helpful for employers or their human resources practitioners to develop clear policies — which are reviewed by a lawyer and posted in the workplace — advising employees of the restrictions and ensuring they understand them.

"There should also be clear language about other products that contain cannabis," she says.

While medical marijuana is a legal form of medication employers may be required to allow in the workplace, those with prescriptions do not have the right to consume it whenever or wherever they choose, nor do they have the right to be impaired, particularly in safety-sensitive positions, Forbes-Chilibeck says.

She says an employer could deal with a person high on recreational cannabis similar to how they would handle someone impaired by alcohol.

"An employer can send an intoxicated worker home," she says. "They have the right to discipline people. In most situations, it's not acceptable to be impaired in the workplace. It's not safe for other workers or clients and it's not conducive to getting the job done."

What employers don't have the right to do are random drug tests, unless there is a demonstrable health and safety concern, Forbes-Chilibeck says.

However, she cites a Supreme Court of Canada case where an employee was dismissed, not because of his dependency on a drug, but because of a breach of policy. The job was considered to be a safety-sensitive position, and the employer’s drug and alcohol policy, which the appellant had reviewed and signed, encouraged employees to disclose abuse, dependency or addiction before an incident occurred.

The firm offered treatment rather than discipline while emphasizing deterrence and safety, and the policy explained violations would result in termination, Forbes-Chilibeck says.

"This decision enables employers to split hairs when dealing with safety-sensitive situations. More than ever it is very important in terms of what those policies are and how they're drafted, because it allowed this company to take disciplinary action against this individual, where he would likely have otherwise been determined to be disabled and entitled to workplace accommodation or disability leave," she says.

What may become a concern in the future is whether dependence on recreational cannabis may constitute a disability requiring accommodation under the Ontario Human Rights Code, Forbes-Chilibeck says.

She expects that would be treated similarly as with those who have dependencies on other substances.

"Typically I would expect that one would be eligible for long- and short-term disability leave with the condition they were compliant with some sort of treatment regime," Forbes-Chilibeck says.

Then there must be an assessment and investigation of accommodation options to the point of undue hardship, taking into account factors including, but not limited to, cost, outside sources of funding and health and safety requirements, she says.

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