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48 J U N E / J U L Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m gary. And "different types of plants have different strengths . . . how long THC stays in the system is also at issue," he says. "That'll be one of the big challen- ges: to test and prove [cannabis] impair- ment in employment." All that said, "The legalization of recreational marijuana in this country doesn't erode the employer's right to insist employees are free from impair- ment when they show up to work," notes Demerse, adding that legalization of recreational marijuana use will not change the employer's right to control drug use where it affects the workplace. Safety first The use of medical marijuana in the workplace is governed by provincial health and safety legislation. Under the Ontario Health and Safety Act, for example, employers are charged with taking "every precaution reasonable in the circumstances for the protection of a worker." This means employees do not have the right to be impaired in the workplace where that impairment may endanger their own safety or that of their co-workers. And although drug testing in Can- ada is restricted to specific circum- stances, "employers do have the right to post-incident drug testing" where a serious safety incident or near-miss has occurred, Demerse notes, as well as where there are signs of impairment. And employers running safety-sensitive operations have the right to require pre-employment drug testing as a con- dition of hire, he says. Of course, some industries are more safety sensitive than others, and when the federal government's proposed legis- lation to legalize recreational cannabis was announced, "it caused a relatively big kerfuffle for employers" in Alberta, says Damian Rigolo of Osler Hoskin & Har- court LLP in Calgary. "Our main industry is oil and gas; so, health and safety is a huge concern." Despite this, Rigolo says, Osler's view is that "Armageddon isn't coming. You can treat marijuana like other drugs," first, as a prescription if it's medical marijuana, and second, for recreational marijuana, as alcohol might be treated. "The fact that marijuana may become legal doesn't give a person an unfettered right to use it at work." The focus of employers' testing will be the forklift driver, and those operat- ing complex and heavy machines in the oil and gas industry, says Rigolo, adding that there would be no reason — or right under the law — to give a test for alcohol or drugs to a receptionist or other office worker. Accommodation Employers will have a duty to accommo- date individuals using medically autho- rized marijuana and those addicted to marijuana, as for any other drug. Employers don't have to put up with the use of marijuana in the workplace unless there's a workplace accommoda- tion issue, says Richard Charney of Nor- ton Rose Fulbright LLP in Montreal. An employee must first show that he or she has a medical justification for using it, he says. "That gets the employee a foot in the door." But in last year's Ontario Division- al Court decision in Bottiglia v. Otta- wa Catholic School Board, the panel ruled that in certain circumstances an employer will be justified in requesting an independent medical examination, or IME, as part of the duty to accom- modate imposed upon employers under Ontario's Human Rights Code. "So, employers . . . shouldn't get intimidated by [the] marijuana" accom- modation, says Charney. "Employers should have the confidence in their abil- ity to control it and, indeed, an obliga- tion, in order to balance the age-old ten- sion between workplace safety on one hand and accommodation on the other. An employer may inquire as to the extent of an employee's need for medical marijuana from a doctor and can ask the doctor to comment regarding his or her knowledge of the employee's job." L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T DIFFERENT TYPES OF PLANTS HAVE DIFFERENT STRENGTHS… HOW LONG THC STAYS IN THE SYSTEM IS ALSO AT ISSUE. THAT'LL BE ONE OF THE BIG CHALLENGES: TO TEST AND PROVE [CANNABIS] IMPAIR- MENT IN EMPLOYMENT. DAMIAN RIGOLO, Osler Hoskin & Harcourt LLP

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