Robert Weir is a partner at Borden Ladner Gervais LLP. Adam Pennell is an associate at Borden Ladner Gervais LLP. Both are members of the labour and employment department
When recreational marijuana users gather on April 20 for Cannabis Day, they will have something else to celebrate: much anticipated legislation which decriminalizes marijuana in Canada. Last Thursday, the federal Liberal government tabled the Cannabis Act. While this legislation sets out the path forward for legalizing recreational marijuana, the responsibility for more detailed laws relating to distribution and sale will rest with the provinces. All of these moving parts are expected to come together by July, 2018.
In the meantime, Canadian employers have questions about how to respond to this changing legal landscape. This uncertainty also extends, to a somewhat lesser degree, to the Canadian judicial system. Coincidentally, on April 3, 2017, an Ontario Superior Court judge declined to grant an injunction striking down a random drug testing policy sought by the union representing employees of the Toronto Transit Commission.
Are we at a point now where more liberal attitudes toward recreational marijuana use in society will be balanced by a more conservative approach in Canadian workplaces and courts? It is too early to tell.
For employers, a starting point is to realize that changes will not happen overnight. As with alcohol, legalization of recreational marijuana will not give employees the right to freely use marijuana in the workplace. Employers may continue to be able to expect their employees to show up sober and ready to work. Subject to medical conditions, employers will still be entitled to discipline employees whose recreational use of marijuana has an adverse impact on their job performance. In Ontario, restrictions on the smoking of tobacco in the workplace would apply equally to the smoking of marijuana with the passage of Bill 178.
Employers will have to review and amend existing workplace policies and procedures once the Cannabis Act comes into force. This legal change may also require a social shift away from traditional views on the recreational use of marijuana. One key change will include removing any express policy references to marijuana usage as an illegal "off-duty" activity. While such activity will no longer be illegal, employers can still restrict the use and possession of marijuana in the workplace.
Employers must also be mindful of the use of marijuana to treat an illness or medical condition. Employee usage should be treated in accordance with existing policies and procedures on the use of other prescription medications in the workplace. Under federal and provincial human rights legislation, employers have a duty to accommodate employees with disabilities to the point of undue hardship. The range of accommodation efforts will depend on a number of factors including the financial ability to accommodate, the type of work performed and the impact of marijuana use on the employee's essential duties.
In limited circumstances, employers may also be required to authorize a leave of absence while an employee undergoes marijuana treatment or reassign an employee to alternative duties in a non-safety-sensitive position. Such employees would likely require reinstatement once they have recovered from their illness or medical condition. Long-term disability may also be required, if provided by the employer, in the event the employee cannot return to work safely.
Employee accommodation must be balanced with the broader duty under federal and provincial occupational health and safety legislation to provide for a safe workplace. For example, section 25 of the Ontario Occupational Health and Safety Act requires that employers take "every precaution reasonable in the circumstances for the protection of a worker." Safety-sensitive positions, such as those involving the operation of heavy machinery, may include essential duties or requirements that create safety concerns when a proposed accommodation plan includes marijuana use. If the recent Toronto Transit Commission case is any indication, this will be an area of considerable litigation in the future.
All of these potential changes and obligations can leave both employers and employees dazed and confused. It is important to recognize that until federal and provincial legislation to legalize marijuana and regulate its production and use enters into force, the current criminal restrictions remain. However, an ounce of preparation goes a long way in addressing workplace disruptions before they arise. Employers would be well advised in the meantime to review and prepare to amend existing policies and procedures.