Cannabis Is Still a Hazy Workplace Issue in Canada, Years After Legalization

​Since the implementation of Canada's federal Cannabis Act in 2018, workplace cannabis use has been a hot topic in employment law.

Many employers were, and remain, concerned about how to mitigate the risk of workplace impairment from cannabis use. What policies need to be implemented in the workplace? Is it reasonable to enforce drug testing in the workplace? Is the use of cannabis for medical purposes permitted in the workplace?

The use of nonmedical cannabis in the workplace can be compared to the use of alcohol—neither is permitted. However, the approach differs when the use of cannabis is for a medical purpose, for example chronic back pain.

While an employer has a duty to accommodate an employee's disability, employees cannot claim the right to be impaired and create any risk at work. An employer would extend accommodation to employees using medical cannabis in the same way as it would for any other prescribed medication. However, the duty to accommodate is limited.

Even with a medical prescription, an employee cannot consume cannabis in an unfettered manner that is unsafe or compromises the safety of themselves or others. For example, a medical prescription does not entitle an employee to unexcused absences or to walk around the workplace high.

Workplace safety matters and the Ontario Human Rights Tribunal made this clear in the case of Aitchison vs. L & L Painting and Decorating Ltd. In this case, an employee was terminated for ingesting cannabis at the workplace. Though the employee had a medical prescription for the use of cannabis to assist with his back pain, the Tribunal held that impairment was a genuine safety concern and the employee had no right to ingest cannabis in the workplace regardless of his medical concerns.

The Tribunal ruled against the employee because he did not provide evidence attesting to the fact that he suffered from an ailment that required accommodation nor did he request accommodation for the use of medical cannabis in the workplace.

The Tribunal stated that "the applicant does not have an absolute right to smoke marijuana at work regardless of whether it is used for medical purposes." Employers can rest assured that the use of medical cannabis at work is not unrestrained and employees have no absolute right to consume medical cannabis at work.

So, how impaired does an employee need to be in order to be viewed as a safety risk in the workplace? The answer is not definitive.

There is a lack of reliable testing measures to adequately test cannabis impairment levels. Not to mention, cannabis can be ingested in a variety of ways—inhalation, oral, topical. Each method brings with it different characteristics which makes it harder for employers to visibly detect.

Obviously, an employee does not need to sit in a cloud of smoke to be caught high. Eating cannabis-infused brownies leads to the same result without the rather obvious physical characteristics that come with smoking the drug.

An employer may implement a workplace policy that prohibits the use of cannabis while allowing for the use of an alternative pain medication that deals with the aliment in question without producing the mind-altering effects of cannabis.

That being said, what about a nonintoxicating alternative, such as CBD? CBD-infused products typically do not produce psychoactive effects, but there could be possible aftereffects. As such, it is often lumped together when speaking of cannabis use. Canadian laws remain blurry regarding the legality of CBD.

Though employers may be tempted to use drug testing to ensure that safety regulations are met, for the most part they cannot subject employees to drug tests. Doing so is an infringement on an employee's right to protection of privacy, as well as a violation of Ontario's Human Rights Code.

Drug testing in the workplace is restricted to very specific situations. Such circumstances include extremely dangerous workplaces or evidence of reasonable cause. It tends to revert to the question of safety: does a receptionist need to be administered a drug test? Likely not. His or her job does not endanger their safety or the safety of other employees in the workplace.

What about a forklift driver who operates heavy machinery? Drug testing may apply because the employee is responsible for handling heavy machinery. This is an objectively dangerous job in comparison to a receptionist handling paperwork. Although, even in such circumstances where the work environment dictates the need for safety-sensitive measures, there must still exist a reasonable cause or an actual problem in the workplace that demands the facilitation of a drug test.

Similar to workplace policies involving the use of alcohol, employers have the right to implement rules prohibiting the use of cannabis in the workplace. While Aitchison is good news for employers, it is important for employers that still use workplace policies with outdated language such as a prohibition of "illegal drugs" and alcohol to revamp their policies as cannabis is no longer an illegal drug and such prohibitory language arguably does not capture the use of cannabis.

What are ways for employers to educate employees about cannabis use?

• Create and inform all employees or reiterate the company's drug and alcohol policy.
• Communicate to employees that they must arrive to the workplace fit and able to perform their work responsibilities.
• Train upper and senior management to monitor and be aware of the signs of cannabis use.
• Provide employees training on the interplay between cannabis use, substance abuse and mental health.

The law surrounding cannabis use will continue to evolve as the technology and methods for testing cannabis impairment are refined. With better testing methods for cannabis, assessment of cannabis impairment will be easier. As litigation increases in cannabis law, many uncertainties will be resolved that will further shed light on the balancing act between the accommodation of medical cannabis in the workplace and the importance of a safe work environment.

Howard Levitt and Shloka Saini are attorneys with Levitt Sheikh in Toronto. © 2022 Levitt Sheikh. All rights reserved. Reposted with permission of Lexology.