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Cannabis: What employers need to know

Friday, October 19, 2018 @ 9:06 AM | By Laura Williams


Laura Williams %>
Laura Williams
Law firms, like many other employers across Canada, are still grappling with the potential workplace fallout from the historic legalization of cannabis for recreational use.
   
With the enactment of Bill C-45, the Cannabis Act, Canadians are now able to purchase and possess up to 30 grams of cannabis, consume the drug in authorized locations and grow up to four cannabis plants per household. While the sale of edibles (baked goods, drinks, etc.) remains illegal for the time being, Canadians can legally make cannabis-containing products at home (brownies, anyone?).

What the new law does not allow is for employees to get high in the middle of the office or during a client meeting. Also, smoking inside buildings is still prohibited in every province, including smoking cannabis.

The bottom line is that pot may be legal, but it can’t be used indiscriminately. In fact, there is a very good chance that legalization won’t cause much of a spike in consumption at all. In a recent survey conducted by Statistics Canada, the vast majority of Canadians — 79 per cent — said legalization will have no impact on their willingness to try or boost consumption of the drug.

Nor will legalization have much of an impact on the vast majority of businesses — law firms included.

Nightmare scenarios of monthly billings plummeting in a haze of marijuana-induced unproductivity are more than far-fetched. While legalization is a new reality, it is fully manageable with a proactive approach to labour and employment law policy design and implementation and consistent enforcement. The fact is that organizations have been required to accommodate medical marijuana in the workplace for some time. The only distinction now is that individuals without specific medical requirements can use the drug within legal limits.

The focus for law firms — and their clients — should be on mitigating drug-related risk and balancing accommodation requests within the framework of their organization’s operational requirements. Doing so presents an opportunity for employers to review and refresh their employee policy manuals to ensure full legislative compliance.

In Ontario, for example, the province’s Human Rights Commission recently released a policy update that reminds employers of their duty to accommodate employees with disabilities, including those suffering from drug addictions. This requirement applies to individuals who use marijuana to treat medical conditions, but only extends to the point of undue hardship.

Employers are not required to tolerate workplace impairment, especially in safety-sensitive environments or roles. As the commission noted in its guidance, “The duty to accommodate ends if the person cannot ultimately perform the essential duties of the job after accommodation has been tried and exhausted, or if undue hardship would result.”
In other words, human rights protections in the province remain unchanged by the new legislation.

This includes the fact that recreational cannabis users do not have any protections under human rights legislation. As the chief commissioner of the Ontario Human Rights Commission explained, the general expectation is that people don’t come to work impaired.

Further, it’s important to note that employers must act in good faith when assessing accommodation requests, but are not always required to grant them. If accommodation would compromise the safety of the workplace, for example, it may not be possible. That’s an unlikely scenario at a law firm, but the impairment of a lawyer or associate could significantly impact their ability to deliver services and meet the requirements of their position, thereby making a case for denying accommodation.

Your firm’s HR team should act now to prepare a workplace risk assessment outlining the potential threats that impairment could pose to the safety or success of the organization and use that assessment as a basis for drafting updated drug and alcohol abuse policies.

Revised policies should explicitly prohibit non-medical cannabis use in the workplace, while making the distinction between employees who use the drug for recreational purposes and those with legitimate medical requirements or addictions.

Employers can require workers to proactively identify their addiction, which would then trigger the duty to accommodate, while also providing the employer with the right to discipline the employee for violating workplace policy if that addiction is not disclosed. It should also be clearly stated in your policy that your firm will respect medical requirements to use the drug.

However, your HR team can obtain prognosis information from the employee’s doctor, while asking additional questions such as the amount of marijuana the person needs to consume to treat their condition, the medical limitations stemming from their condition and consumption and when that usage needs to occur.

Those inquiries will help clarify whether accommodation is in the cards. Case in point: Our firm recently assisted a client in accommodating an employee request to use medical marijuana in the workplace which, upon further inquiry, was revealed to be a treatment for insomnia. As the individual worked during the day, the employer had no duty to accommodate cannabis use in the workplace.

In the coming weeks or months your clients may ask for advice on how to manage accommodation requests. Tell them that all inquiries require a prompt written response, while managers should be trained to assess and process those requests — and how they might impact the workplace.

The objective is to determine whether accommodation would threaten workplace safety or create undue hardship for the organization. Perhaps the most important advice is to act quickly to put these policies in place. One of the greatest HR law threats faced by any organization is lacking comprehensive policies.

Without this necessary infrastructure in place, law firms and their clients expose themselves to the risk of costly litigation, human rights challenges and damage to their brand reputation — all of which are completely avoidable.

As the founder and principal of Williams HR Law Professional Corporation and Williams HR Consulting Inc., Laura Williams provides strategic advice and legal representation to employers on a full range of labour and employment law matters. 

Photo credit / mrhighsky ISTOCKPHOTO.COM

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.