Canadian Lawyer InHouse

September/October 2019

Legal news and trends for Canadian in-house counsel and c-suite executives

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Page 11 of 47

12 WORKPLACE Cannabis policy for employers Hey, boss, can I get a break to smoke this joint? Abbas Kassam on the new workplace culture GIVEN THE RECENT legalization of recreational cannabis use, employers would be prudent to consider the effect of cannabis consumption on the workplace. Putting together a cannabis policy can provide guidance for both the employees and the employer in addition to setting the tone for the workplace culture. A spectrum of different policy options is available, ranging from strict prohibition outside of legally required accommodation to progressive policies that preempt a potential change in the culture around cannabis consumption. Regardless of the options pursued, employers should ensure that the resulting policies are applied in a fair and consistent matter. Below are some considerations to help guide employers in putting together a policy. Accommodation of medical marijuana users There are legal obligations on employers to accommodate medical marijuana users that predate the legalization of recreational can- nabis use. When drafting a cannabis policy or dealing with specific situations of accom- modation, employers should consider the disclosure requirements of the employee and the level of reasonable accommodation. Generally, employees who require the use of medical marijuana should disclose the re- quirement to their employer, especially where the consumption could reasonably have an impact on work-related duties. Commonly, employees may be reluctant to disclose their consumption of medical marijuana, given the cultural stigma attached to it. Employers have a duty to inquire when an employee is clearly unwell or may have a disability requiring medical marijuana use. However, employers would likely be best served by implementing policies and culture conducive to employees self-disclosing any cannabis consumption. If any employee discloses medical marijuana use based on appropriate medical documentation, a duty to reasonably accom- modate the employee arises. Reasonable accommodation is a case-specific inquiry de- pending on the context of both the employer and employee. For example, in Aitchison v. L & L Painting and Decorating Ltd., the Human Rights Tribunal of Ontario held that the em- ployer was not required to accommodate the employee's medical marijuana use given: a) Health and safety concerns — the em- ployee was a painter who worked outside high rise buildings b) No request for accommodation — the employee did not ask for an accommodation and chose to self-medicate without approval from a doctor or the employer. If the employee is to be accommodated and requires time and space to consume medical marijuana at work, employers should take note of other legislation that may affect where the employee can consume depending on the mode of consumption. For example, the Smoke-Free Ontario Act, 2017 and the Occupational Health and Safety Act would limit smoking in an enclosed workplace. Accommodation of disabilities Employers do not have a general right to know the nature of an employee's disability. There may be situations where an employee's can- nabis consumption is based on an addiction to cannabis. This poses unique concerns, in- cluding whether the addiction affects the em- ployee's performance in the workplace. Again, employers would be well served by creating a policy and culture of self-disclosure. Reason- able accommodation would be required for addiction-based disabilities. Fitness assess- ments from medical professionals can assist both the employer and employee in determin- ing a reasonable level of accommodation. If desired, employers are permitted to draft polices requiring disclosure of addictions. For example, in Stewart v. Elk Valley Coal Corp., the employer had a policy that required disclosure of an addiction prior to any drug- related incident occurring. Once disclosed, the policy stated that the employee could be offered an opportunity to receive treatment. If an employee failed to disclose the addiction

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