The legalization of recreational cannabis in Canada in 2018, opened the door to a wave of new questions about how it fits into the workplace. Employees might feel empowered to use cannabis in their free time, but employers are increasingly concerned about its impact on safety, performance, and overall productivity.
So, how has the new legislation affected the rights of employees to use cannabis? Surprisingly, the passing of the Cannabis Act did very little to change the dynamics relating to permitted recreational cannabis use in the employment context. If anything, the rights of employees to use cannabis, recreationally, have been limited, not improved, by the legalization, and strict regulation, of cannabis.
Human Rights
It is important to note that there is a very clear line to be drawn between those who have a legitimate disability and are prescribed medical cannabis and those who use cannabis recreationally. In Ontario, section 5(1) of the Human Rights Code (Code) states that employers cannot discriminate against employees for a legitimate disability. The bar on discrimination includes any negative treatment towards an employee who has a disability that requires medical cannabis for treatment of their condition, or an employee who is addicted to cannabis. Section 17(2) of the Code also states that if someone’s disability (or related cannabis use) negatively affects their work, an employer must accommodate that employee by altering their work duties, unless the accommodation equates to undue hardship for the employer. In some rare cases, this may even include allowing an employee to use cannabis while at work. Effectively, these protections allow employees to use cannabis without repercussions as long as they have a prescription for cannabis, and their use does not significantly impact their work.
Occupational Health and Safety
However, the case law has stipulated that discriminating against someone, including not accommodating their disability, is reasonable if the employer can show that the discrimination is required because the employee cannot meet a pre-established bona fide occupational requirement due to their disability. This is especially true if the employee works in a safety-sensitive environment. Furthermore, sections 25-28 of the Occupational Health and Safety Act (OHSA) make it clear that employers, employees, and all those on a work site, must ensure that the workplace is safe at all times. This includes not allowing someone’s impairment, or side-effects of cannabis use, to affect the safety of themselves or others. Therefore, accommodating someone’s disability is secondary to the safety of everyone in the workplace. In addition to these safeguards, employers may create strict workplace policies relating to cannabis use in safety-sensitive industries, and for cannabis users generally. These policies can make not using cannabis during or after work a bona fide occupational requirement, require individuals to disclose their addictions and accept treatment, and drug test employees at will in safety-sensitive industries. If employees willingly break these policies, employers may terminate their employment with potentially minimal recourse from the law.
Recreational Users
So, if the protections for those who require medical cannabis, and those who are living with cannabis addiction, have many caveats and restrictions, where does this leave recreational cannabis users? Unfortunately, the protections for this population are almost non-existent.
In addition to the ability of employers to create strict policies for safety-sensitive industries, and cannabis users generally, Ontario legislation identifies multiple industries with zero-tolerance policies for cannabis use and possession. One of the most severe zero-tolerance sanctions is for individuals who are employed as commercial motor vehicle drivers. Recent amendments to the Highway Traffic Act (HTA), notably the sections under 48.0.4, have made it illegal for anyone who is a commercial motor vehicle operator to have any presence of cannabis in their system. If they test positive for any cannabis, whatsoever, commercial vehicle operators face a license suspension and fine without the ability to contest. If the same operator has a prescription for medical cannabis, and the assessing officer determines that the operator is not too impaired to drive, they may get away without sanction. Recreational cannabis users do not have this added protection.
The OHSA regulations also identify three other industries with similar zero-tolerance policies to cannabis use, and additionally cannabis possession. OHSA Regulations 854, 855, and 629 state that employees in mining operations, oil and gas operations, and diving operations, respectively, cannot have any presence of cannabis in their system. Additionally, regulations 854 and 855 state that an employee in mining operations, and oil and gas operations, respectively, cannot “carry” a drug on their person while at work. These regulations also have protections built in for those prescribed medical cannabis.
Key Employment Law Concerns
- Many concerns encompass employee rights to cannabis, but only three are discussed here. One is the ability of employers to create strict cannabis policies, the second is the testing used to assess an employee’s cannabis use, and the third is the strict stance on possessing cannabis in certain industries. With respect to the first issue of strict cannabis policies, due to media coverage of recreational cannabis legalization, employers became overly concerned about an intoxicated workforce. This led to incredibly strict workplace policies that instilled a heightened level of mistrust into Canada’s already sensitive employment dynamic.
- On the second point of testing, if you have a prescription for cannabis, notwithstanding the above caveats, you are permitted to have some cannabis in your system within any strict employer policy or even in a zero-tolerance industry. However, if you are a recreational user, within these same environments, any presence of cannabis in your system could cost you your job. It is well-known that the testing instruments used to measure the level of THC (the psychoactive ingredient in cannabis) in someone’s body are generally flawed and not nearly as accurate as a breathalyzer is for alcohol. Many studies, such as this, highlight that a person can test positive for cannabis weeks, or even months, after consumption. This is highly problematic for recreational cannabis users who happen to work for employers with strict cannabis policies and/or in zero-tolerance industries. For example, if you are a commercial motor vehicle driver who smoked a non-prescribed joint on Saturday, you could have your license suspended, and potentially lose your job, on Monday a week or two later, without any further cannabis use after the one initial joint. This is because the testing instruments are often far too sensitive to detect actual intoxication versus merely the presence of THC in your body. Of course, testing instruments, such as those linked here, have become much more accurate. However, any testing instruments are still arguably not sensitive enough to assess active intoxication versus past passive use, and there is always the concern of whether an employer is using the most up-to-date instruments.
- Finally, on the third issue of possession in certain industries; if you work in mining operations, or oil and gas, and you happen to leave some (perfectly legal), albeit not prescribed, cannabis in your pocket while you are at work you may be at risk of contravening OHSA regulations.
Take Away
It is clear that the legalization of recreational cannabis did not create absolute immunity for cannabis use in the workplace, especially for employees who are recreational users. There are many restrictions on cannabis use, even for those who have a medical requirement to use the substance. Furthermore, those who use cannabis recreationally have almost no rights when it comes to cannabis use and their employment. Therefore, employees should be aware of the repercussions they may face within, and outside, their workplace if they use cannabis. Additionally, employers need to be explicit when outlining their workplace policies, and the applicable legal standards, to ensure that their employees are fully informed of the specific workplace standards relating to cannabis use
If you need guidance on navigating challenges associated with cannabis use in your workplace, give us a shout today!
