Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 7 45 use, unlike with a drug that's come to market through a pharmaceutical company," says Bouwmeester. Employ- ers have a commitment to understand marijuana as a drug and if it will benefit workers medicinally. Users of medicinal marijuana are afforded protection under human rights codes, as the need for it is consid- ered a disability of sorts, says Muneeza Sheikh of Levitt LLP, an employment and labour boutique firm in Toronto. While under the human rights codes there's a duty to accommodate, that's to the point of undue hardship only, and an employee must show their need. At the same time, the Occupational Health and Safety Act says that all employees have the right to work in a harassment-free, safe and healthy environment, which also places an obligation on employees, Sheikh says. Although the employer does have an obligation to accommodate employees with medical problems, the threshold may be lower when workplace health and safety issues present themselves. Safety (and policy) first "The bottom line is no law is ever going to allow an employee to work while impaired," says Natalie MacDonald of employment law boutique Rudner Mac- Donald LLP in Toronto. "It poses a safety risk. The employer has an absolute ability to say this is a reason we're not allowing you to ingest marijuana in the workplace." This includes an employer right to modify a worker's hours or even give a leave of absence. A consequence of the breach of policy, where an employee is not fit for duty, would be reprimand, discipline, termination or termination for just cause. MacDonald says she advocates a "POT" approach for employers and a "WEED" approach for employees. Employers first need a Policy, drug- and alcohol-related, she says. "O is for obli- gation to accommodate and engage the employee. And T is to train employees on the policy." For employees, she says, "W is, with- out a prescription, there is no accommo- dation; E is engage with your employer if accommodation is required; E is ensure that your employer is aware of your need for accommodation; and D is disclose all medically required prescription drugs." This applies to public- and private-sector workplaces alike. Drug testing is not expected to be used more in workplaces with the advent of the new cannabis legislation "unless you're in a safety-sensitive position," says MacDonald. "If you have marijuana in your system but you're not high when doing your job, you won't be jeopar- dizing yourself or others. An employer will have to show that testing is in the interests of safety, for the employee, the workplace and/or the public. "Therefore, if the employee does have the need, by way of a medical note, to have marijuana for medical purposes, the employer [still] has the right to forbid employees from doing certain kinds of work," she says, such as operating a forklift. "I don't think that the legalization of cannabis will on its face change the current state of drug and alcohol test- ing in the law," Howcroft agrees. "Right now, the law tries to balance workplace safety with employee privacy. I think that won't change." But a spate of cases to do with drug and alcohol testing have arisen in recent years, including the Supreme Court of Canada's 2013 decision in Irving Pulp & Paper Ltd., in which the court endorsed a line of arbitral case law that permits testing of employees in safety-sensitive positions in dangerous work environments for cause and, in strictly limited circum- stances, for alcohol impairment on a random basis. In a recent Toronto Transit Commis- sion case, the union went to court to try to get an injunction against random testing in the workplace, but in April, the Ontario Superior Court of Justice rejected that injunction and allowed the TTC to implement its drug and alco- hol testing, pending the outcome of a labour grievance. "The union had a privacy objection," Howcroft says. However, "it came down to balancing health and safety issues with privacy." THE BOTTOM LINE IS NO LAW IS EVER GOING TO ALLOW AN EMPLOYEE TO WORK WHILE IMPAIRED. IT POSES A SAFETY RISK. THE EMPLOYER HAS AN ABSOLUTE ABILITY TO SAY THIS IS A REASON WE'RE NOT ALLOWING YOU TO INGEST MARIJUANA IN THE WORKPLACE. NATALIE MACDONALD, Rudner MacDonald LLP 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

• Cover