On October 17, 2018, the Federal Cannabis Act, 2018, and the Ontario Cannabis Act, 2018 became law in Ontario (“the Acts”). The Acts legalize the consumption of recreational cannabis in Canada.
The federal government governs the legalization of cannabis and sets general rules surrounding that legalization. Then, provinces and territories can set rules around the sale of cannabis and can also create added restrictions to the general rules set by the federal government.
Below is a summary of how the Acts will affect employers and employee policies with respect to cannabis in the workplace.
Employers Must Provide a Safe Workplace for Employees
Consuming recreational cannabis in the workplace has always been illegal and continues to be after legalization on October 17, 2018. However, employers will likely have to review and amend existing workplace policies and procedures to address the impact that the legalization of cannabis may have on current policies.
Ontario prohibits smoking or vaping cannabis for recreational and medical purposes in an enclosed workplace. However, an employee can consume edible cannabis for a medical purpose in an enclosed workplace as long as it does not interfere with workplace health or safety.
Under the Occupational Health and Safety Act (“OHSA”), employers have a duty to take every reasonable precaution to protect workers. Workers have a corresponding duty not use or operate any equipment, machine, device or thing, or work in a manner that may endanger himself, herself or any other worker.
Workers performing work when they are unable or unfit to do so safely may introduce a hazard to the workplace, to themselves or to others, and workplace parties are required to address such hazards under the OHSA. These types of hazards may arise from a worker’s impairment due to the use of various substances, including cannabis.
As with alcohol, legalization of recreational marijuana will not give employees the right to freely use cannabis in the workplace or attend work impaired. Employers can continue to be able to expect their employees to show up sober and ready to work. Subject to medical conditions, employers will still be entitled to discipline employees whose recreational use of cannabis has an adverse impact on their job performance or the safety of the workplace.
Medical Cannabis and the Workplace
Employers must also be mindful of the use of cannabis to treat an illness or medical condition. Medical cannabis has been legal since 2001. Its use will continue to be governed by regulations of the Controlled Drugs & Substances Act. Employee usage should be treated in accordance with existing policies and procedures on the use of other prescription medications in the workplace.
The Human Rights Code of Ontario (“the Code”) offers protection for persons with disabilities. As a result, there may be a legal obligation to accommodate the use of medical cannabis in the workplace. There is no similar obligation to accommodate the use of recreational cannabis absent an addiction, as an addiction to cannabis is a protected disability under the Code.
Under federal and provincial human rights legislation, employers have a duty to accommodate employees with disabilities up to the point of undue hardship. The range of accommodation efforts will depend on a number of factors including the financial ability to accommodate, the type of work performed, and the impact of cannabis use on the employee’s essential duties. Generally speaking, the duty to accommodate ends if the person cannot perform the essential duties of their job after accommodation has been tried and exhausted, up to the point of undue hardship.
To assess the potential health and safety risks that cannabis use may present in the workplace, an employer should take steps to determine what effect the employee’s disability or authorized cannabis use may have on his or her ability to work safely and effectively.
As the use of recreational cannabis becomes more prevalent, employers should carefully consider whether their drug and alcohol policies and procedures require updating to ensure they can be relied on when establishing workplace expectations and disciplining employees with respect to the use of cannabis.