Employers: Navigating Cannabis Legalization and the Workplace

Employers: Navigating Cannabis Legalization and the Workplace

It’s been almost a year since the federal government legalized the use of recreational cannabis, and it’s no secret that employers have had a difficult time navigating the impact of legalization on the safety of their employees and their workplaces. When it comes to cannabis and safety-sensitive positions, in particular, employers can look to recent legal decisions where important precedents have, and continue to be set, to better understand the reasoning behind certain rulings.

In International Brotherhood of Boilermakers, Local Lodge No. D575 v. Continental Lime LTD., [2002] M.G.A.D. No. 13 (QL), a safety-sensitive position was defined as “one in which job performance requires the employee to be alert, physically coordinated and exercising good judgment, with a significant involvement in any part of the company’s operations where impaired job performance could affect the health, safety or security of the employee, other persons, property or the environment.”

While employers may not be successful in attempting to manage employees cannabis use outside of working hours, the employer does have a duty to impose restrictions on cannabis use in order to protect their employees and business. Ultimately, it is up to the employer to determine whether or not an employee is fit for duty, and this can be made clear by creating certain safety guidelines on cannabis, and implementing these guidelines through employee training.

According to the Ontario Human Rights Code, employers have a duty to accommodate the use of, and even an addiction to, cannabis, to the point of undue hardship. However, this must be balanced with the employers duty to protect employees safety and well being. At the same time, the employee has a duty to disclose their cannabis use and related needs to the employer, as demonstrated in a recent Supreme Court of Canada decision (Stewart v. Elk Valley Coal Corp., 2017 SCC 30). In this case, the employee operated in a safety-sensitive workplace, and had an addiction to cocaine, but failed to disclose this to the employer. The employee was terminated based on breach of the company’s drug and alcohol policy, and the decision to terminate was upheld by the supreme court.

Employers can rest assured that the decision of whether or not an employee is fit for duty, is theirs alone. In instances where the employee discloses the use of cannabis, but it is in conflict with company policies and guidelines, or jeopardizes the safety and security of other employees, or the workplace in general, the employer may choose to take appropriate action.

What can employers do?

  1. It is important to have a clear understanding of the requirements of your job. Define the essential duties and ensure that you have a physical, cognitive and sensory job demands analysis of the role
  2. Define what is safety sensitive work
  3. Have an accommodation policy clearly written with the requirement for the employee to request accommodation as required
  4. Consider an accommodation assessment by an Occupational Therapist
  5. If you are aware that an employee is utilizing medical cannabis, have a health assessment completed to clarify the usage and determine impact on the safety sensitive role

What should the employee do?

  1. Check with your medical provider to see if there are alternatives to the use of medical cannabis for symptom management
  2. Follow your employer’s policies on substance use and disclosure
  3. Make your employer aware of any medical or non-medical use of cannabis if you are working in a safety sensitive position

How can Gowan Consulting Help?

  1. Provision of physical, cognitive and sensory demands analysis of all jobs
  2. Development of Accommodation protocols
  3. Preparation of clear policies and procedures for accommodation, substance use and fitness to work programs
  4. Provision of Occupational Therapy Accommodation assessments and intervention to support safe work operations

Check out our webinar Medical Marijuana: Impacts on Employment. This webinar will review medical marijuana, how it works in the body and the impact to function.  We will also cover the approaches to determining impairment and safety at work that are currently available.

Works cited:

CANNABIS – Is my employee safe and fit to perform the job? By Nancy Gowan on Jan 15, 2018 https://gowanhealth.com/cannabis-is-my-employee-safe-and-fit-to-perform-the-job/

The Legal Landscape for Canadian Employers One Year after Legalization of Cannabis, By Barry Kuretzky and Will McMillan on October 2, 2019 https://www.littler.com/publication-press/publication/legal-landscape-canadian-employers-one-year-after-legalization

Safety doesn’t go up in smoke in latest cannabis legal decision, by Nancy Gowan on May 8, 2019 https://gowanhealth.com/safety-doesnt-go-up-in-smoke/

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