Hashing Out the Details
With the day of legalization now past, it’s important for workplaces to understand how cannabis fits into the new landscape. Currently, 22% of the adult Canadian population consumes cannabis on a recreational basis, and another 17% show willingness to try it once it’s legal – this comes to approximately 40% of the adult population, which will have an impact in many areas. What changes are necessary, and how will this impact employees and employers?
Cannabis and Safety in the Workplace
Given that Bill C-45 was just recently approved giving way towards legalization, there are currently no specific rules governing recreational use in the workplace. One of the biggest concerns when it comes to employers and cannabis, is safety. When considering policies to adopt, two routes of enforcement are the zero tolerance and the per se limit. Establishing a per se limit is difficult since there is no consensus on the definition of impairment, and people are affected by cannabis based on multiple different variables. For zero tolerance to be enacted, sobriety needs to be established as a bonafide occupational requirement (BFOR), or employers can risk discrimination against employees who use cannabis medically to treat disabilities. This falls under employer’s duty to accommodate.
Duty to Accommodate
In Ontario, the law requires employers to accommodate disabilities of employees up until the point of undue hardship. When it comes to cannabis, this can include accommodating use for a medical prescription as well as accommodating for unseen disabilities such as substance abuse and addiction. Employers should not assume that taking medical cannabis is going to impair the employee’s ability to perform the essential duties of their job and should refrain from making stereotypical assumptions. Employers only need to accommodate the employees needs, not their preference, therefore the employer has the right to choose the less expensive or disruptive option if more than one is possible. Furthermore, a prescription for cannabis does not entitle employees to smoke in the workplace, and smoke-free laws apply to smoking cannabis as they do to tobacco.
An increase in the number of Canadians with medical cannabis prescriptions has caused increasing pressure on benefit programs to cover cannabis. As of 2015, the Canada Revenue Agency added medical cannabis to the list of medically exempt tax credits, which makes it payable through employer-provided healthcare spending accounts. Given the increasing demand, employers would benefit from exploring medical cannabis coverage, and educating themselves on the subject to address the questions they will likely receive from employees.
Prior to legalization, a urine test that was positive for the presence of a THC metabolite would have been grounds to trigger disciplinary actions. Since this is no longer the case, employers need to prove the employee was actually impaired in order to prove violation of a workplace policy. Since the urine test can detect metabolites of THC up to weeks after use, it is essentially useless for this purpose. Until a more reliable method for measuring impairment is developed, employers may have issues making disciplinary decisions in these situations.
Employers can still expect employees to come to work and perform their duties. When it comes to recreational use, employers are still entitled to discipline employees whose use has an adverse impact on their performance at work. According to Ontario laws, employers still retain the right to regulate the consumption, trafficking, and possession of cannabis at work just like they do with alcohol. Employees retain their obligation to perform their work diligently and with care, and to ensure the health and safety and well-being of others in the workplace is not compromised.
Developing policies surrounding medical and recreational cannabis requires understanding of the impacts it can have on the workplace, and the accommodations that need to be made to account for the changing legislation. By staying current with government legislation and addressing the issues pre-emptively, companies can manage a smooth transition in the workplace as it relates to the legalization of cannabis.