The Law at Work: Employment Law and the Legalization of Cannabis
Mark Daly and Ned Nolan
Published in the Hamilton Law Association Journal, December 2018
History was made on October 17th, 2018 as Canada hit a milestone by legalizing the recreational consumption of cannabis. While this move has been celebrated by many Canadians, it has also contributed to additional legal uncertainty – particularly in the workplace.
The Cannabis Act S.C. 2018, c.16 is the federal legislation which has legalized recreational cannabis consumption. The similarly titled provincial legislation, the Cannabis Act, 2017, S.O. 2017, c. 25, Sched 1 and the Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26 Sched. 3 regulate the sale and consumption of cannabis – limiting its use for example in schools, enclosed public areas, workplaces and within a vehicle. Consumption of recreational cannabis in prohibited places can lead to provincial regulatory fines.
Marijuana At Work
While the Smoke-Free Ontario Act prohibits smoking cannabis within the workplace, it does not contain language directly restricting an employee from being impaired at work. Curtailment has largely been left to employers as a function of their responsibilities towards ensuring a safe workplace under the common law and Occupational Health and Safety Act. Therein lies the issue for employers and workers; unlike with alcohol, there is no certainty surrounding what level of THC metabolites which can reliably be said to constitute “impairment” (THC stands for Tetrahydrocannibinol and is the principle chemical compound in cannabis which causes impairment).
Testing for impairment is inconclusive because different people metabolize and react to THC differently. This leads to uncertainty regarding what employer policies, if any, can be implemented to prohibit employees from attending their workplace under the influence of cannabis.
Employer responses on this front have been varied. Some, such as the Toronto Transit Commission and Air Canada have prescribed an outright ban on any off-duty use for certain classes of employees. Others, like the Toronto Police Service, require that an officer refrain from consuming cannabis for a period of 28 days prior to a scheduled shift, which is effectively tantamount to an outright ban.
A number of employers have justified an off-duty ban on the grounds that certain positions are “safety-sensitive” and off-duty use can lead to lingering impairment. Obviously, a significant public interest exists in ensuring that the employees who hold safety-sensitive positions are free from any sort of impairment – no matter how faded. Indeed, whether or not an off-duty ban on the use of recreational marijuana can be relied upon by an employer will depend largely on the issue of safety. Typically, in order for off-duty conduct to effect someone’s employment, it has to harm the employer’s reputation or product, or render the employee unable to perform their job duties satisfactorily. Before legalization, an employer might have argued that off-duty cannabis use could harm the reputation of the employer and thereby result in just cause dismissal. Employers will no longer have access to such an argument.
Absent a safety concern, an outright off-duty ban on what employees can do with a legal substance on their own time is likely going to be seen as an overreach by employers. As such, a breach of any such policy by employees will not necessarily constitute just cause for dismissal in the absence of other considerations such as dishonesty.
The Duty to Accommodate
Further complicating the matter is the employer’s duty to accommodate individuals with a disability under the Ontario Human Rights Code. The case law on this is relatively well established and does not hinge on whether cannabis is legal or illegal.
“Disability” has been broadly construed by the Human Rights Tribunal of Ontario to include those who require cannabis for medicinal purposes as well as individuals suffering from real or perceived addiction. The duty to accommodate individuals with disabilities exists up to the point of undue hardship.
In the recent HRTO decision of Aitchison v. L & L Painting and Decorating Ltd. 2018 HRTO 238 involving smoking cannabis during work breaks, the HRTO found that there was no duty imposed upon an employer to accommodate an individual’s preferences (as opposed to addiction) up to the point of undue hardship. The HRTO further found that the Applicant was dismissed for a serious breach of health and safety policies; his termination was not found to be discriminatory.
There are a number of cases which already address the question of whether employers may institute policies like mandatory drug testing which may discriminate against those with disabilities.
Employers are permitted to enforce workplace policies and regulations that may be prima facie discriminatory, even with respect to individuals with a disability due to medical reasons or addiction, as long as the discriminatory standard is a bona fide occupational requirement (i.e. in this case, a safety concern). The legal test of whether a standard is a bona fide occupational requirement comes from the Supreme Court case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.)  3 S.C.R. 3 more commonly known as the Meiorin decision.
The SCC created a three step test to be used in determining whether a prima facie discriminatory standard is a bona fide occupational requirement:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
Further elaboration on the questions of bona fide occupational requirements and what protections could be offered to those with perceived disabilities was addressed in the Ontario Court of Appeal case of Entrop v. Imperial Oil  O.J. No. 2689.
In Entrop, the Plaintiff was re-assigned to a non-safety sensitive position which was less desirable to him after complying with a policy put in place by Imperial Oil requiring employees in safety-sensitive positions to disclose a current or past substance abuse problem to management. The policy additionally provided for pre-employment drug testing as well as random drug testing for employees in safety-sensitive positions.
The Court of Appeal found that the provisions for drug testing were discriminatory because a positive drug test is not a reliable metric for demonstrating impairment and because Imperial Oil applied sanctions to any person testing positive – whether a casual user, addict, or perceived addict.
The Court went on to state that the absence of drug metabolites was not a bona fide occupational requirement and could not be used to satisfy the Meiorin test.
The requirement of disclosure of all past substance abuse problems was found to be unreasonable and unjustifiable as a bona fide occupational requirement. Rather, the Court set the cut-off point at six years for a person with a previous drug abuse problem. The Court further held that failure to accommodate that individual in a manner tailored to their individual needs was also a violation of the Code.
Cases since Entrop have found that drug testing does not necessarily constitute prima facie discrimination. In Stewart v. Elk Valley Coal Corp.  1 S.C.R. 591 the Supreme Court upheld the termination of an employee who was high at work, was involved in an accident, and who failed to comply with a workplace policy requiring disclosure of substance dependence or addiction in safety-sensitive positions.
The employer had made it clear that employees were required to disclose addiction and that they would be offered treatment and accommodation if they did. Employees were clearly warned that if an individual were to fail to disclose and was then involved in an accident and tested positive for impairment, they would be dismissed.
The Court found that the employee in that case was dismissed for his failure to abide by a reasonable company policy – not for having a disability related to addiction. Accordingly, his dismissal was not discriminatory.
Does an employer have the right to institute a blanket drug testing policy for cannabis?
The question of whether drug testing is permissible, and to what degree it is permissible, is context specific and driven in part by the consequences for failing to abide by the employer’s policy. Also of particular significance is the question of whether the position is safety-sensitive.
Pre-employment drug testing which is used to deny individual employment upon a positive test for THC metabolites will likely be discriminatory. Similar to Entrop¸ this type of screening presumes that an employee who has consumed cannabis in the past would attend work in a state of impairment and it disregards the medical issues which give rise to human rights protection for employees. It also likely discriminates on the bases of a perceived disability.
Post-incident testing may not be discriminatory provided it is part of a larger investigation focused on determining the cause of an accident and is not used to penalize those with related medical issues or addictions (or perceived ones).
Does the duty to accommodate extend to recreational users of cannabis?
Although on its face, the answer to this question would almost certainly be no, the analysis is not that simple. Consistent with the notion of perceived disability in Entrop, a duty to accommodate can be triggered if the employer’s own policies fail to distinguish between a recreational user and an employee who suffers from addiction or uses cannabis for medical reasons. Under such circumstances, the employer’s blanket perception of disability has received the same legal treatment as an actual disability and consequently, the employer’s duty to accommodate would be triggered.
It is noteworthy that cases subsequent to Entrop have narrowed this concept of perceived disability. Where the consequences for testing positive are harsher and include termination, however, the courts has been more inclined to deem a recreational user to be protected under the notion of perceived disability.
Final Thoughts for Employers and Employees
- Employers should clearly communicate that real impairment will not be permitted in the workplace.
- Employers should institute policies encouraging disclosure of a medical need for cannabis as well as current and past substance abuse problems so that accommodation may be made. It is important to make it clear that employees will not face reprisal for their disclosure.
- Employers should avoid imposing blanket and immediate penalties on employees who test positive for or admit to cannabis use on or off work.
- Employees should be forthcoming in acknowledging issues of addiction.
There is a central role for common sense with respect to the above. Employers are not unreasonable in their expectation that employees show up for work unimpaired and employees are not unreasonable in their expectation that employers refrain from prying into their private lives – especially with respect to a legal substance. The legalization of recreational cannabis use will raise some new questions about just cause dismissal and it will probably make the old workplace disputes about cannabis a lot more common. It will be important for employees and employers to tread carefully as the legislation and jurisprudence in this area continues to evolve.