Zeilikman Law is getting many questions from both employers and employees about cannabis use and the implications under Ontario’s Human Rights Code (“Code”).
One of the first questions many have is whether an employee can use cannabis indoors while at work. The short answer is that they cannot. The legislation in Ontario prohibits cannabis use in enclosed workplaces (similar to cigarette smoking or vaping) but allows cannabis use in public outdoor spaces. Therefore, an employee may smoke cannabis in non-enclosed areas of the workplace, such as outdoor spaces. However, the employer may still set out certain policies related to cannabis use outdoors if those outdoor spaces are the private property of the employer.
Another common question is what happens if cannabis use causes the employee to be impaired while at work. The answer here is that employers should treat impairment caused by cannabis use the same way that they would treat an impairment caused by alcohol or other drugs. Further, the employer may be able ban cannabis use at work if it would interfere with the health and safety of others at the workplace or the public. For instance, a company policy on cannabis use could be different for employees who use heavy machinery on construction sites vs employees who have traditional office-type jobs.
What about the duty to accommodate? It is important to note here that the duty to accommodate only applies to cannabis use for medical purposes, not to recreational cannabis use. The Code protects employees who use medical cannabis from discriminatory treatments, similar to other medical drug use, in their employment. The Code will also protect employees who may have an addiction to cannabis use on the ground of disability to the point of undue hardship.
Should employers incorporate cannabis use in their company polices? Employers are free to include provisions or guidelines in their company policies related to cannabis use and should do so especially if the nature of work would require strict rules on cannabis use. As such, employers should be clear in their policies about what they expect from their employees related to cannabis use. However, a caveat here is that employers should be wary of additions to policies that would include certain disclosure obligations as these obligations may conflict with the Code. Further, the policy must not infringe upon the employer’s potential obligation to accommodate disability-related cannabis use to the point of undue hardship. It is best that the employer seek out the assistance of an employment lawyer in order to make sure that any company policy that they may have related to cannabis use is compliant with the Code.
