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With the recent passing of the Bill through the Senate that will see the recreational use of cannabis legal across Canada there has been a marked increase in the inquiries made to employment lawyers on how this will change an employer’s ability to regulate substances in the workplace.
The simple answer is to think of and treat cannabis in the same manner as alcohol.
Important of Workplace Policies
Employers are wise to have an alcohol-policy which should be updated to include cannabis.
The policy should include progressive discipline for attending the workplace impaired, which as a last step would contemplate termination upon numerous breaches of the rules or an immediate termination if sufficient misconduct involving substances arises.
The policies should also contemplate the below obligations of the employer.
Duty to Accommodate Disabilities
Employers have a duty to accommodate an employee with respect to their disabilities to the point of undue hardship. Substance addiction is often considered a disability. For cannabis, , further consideration with respect to accommodation is needed as it is often prescribed for medical use, unlike alcohol.
This of course will also have to be balanced with any safety concerns of having employees attend the workplace impaired.
Employees who are disabled due to dependency issues have to be accommodated, unless the employer can prove accommodating their disability will cause undue hardship. Typically undue hardship includes an evaluation of:
• Any Outside sources of funding; and
• Any health and safety requirements.
If an employee has been prescribed cannabis for medical use, the employer is generally permitted to request doctor’s notes explaining the amount of the prescription, how it is ingested and when it needs to be used. Potentially a functional abilities evaluation while under the influence of the prescription may also be requested by the employer in order to evaluate safety concerns. An employee who wishes to use cannabis for medical purposes should generally cooperate with their employer’s reasonable requests for this information, though reasonableness will depend on the particular circumstances.
No Random Drug Testing
Generally, employment law in Canada does not permit random drug testing before hire or during working hours, though there is potential argument to be made that it is permitted if it is a bona-fide occupational requirement.
Samantha Lucifora is an Associate at Monkhouse Law assisting employees and employers with Human Resources issues.
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