Written by Filip Szadurski, Osgoode Hall Law School, Class of 2020
On October 17, 2018, the Cannabis Act came into force, effectively legalizing recreational cannabis use in Canada. Cannabis legalization raised serious questions relating to who is and is not protected in certain environments. Since legalization, one of the most contentious arenas for cannabis use is employment. Employees are concerned about their rights to use cannabis and employers are worried about cannabis use during work hours. However, surprisingly, the passing of the Cannabis Act did very little to change the dynamics relating to permitted recreational cannabis use in the employment context. If anything, the rights of employees to use cannabis recreationally have been limited, not improved, by the legalization, and strict regulation, of cannabis.
Importantly, there is a clear line to be drawn between those who have a disability and are prescribed medical cannabis and those who use cannabis recreationally. In Ontario, section 5(1) of the Human Rights Code (Code) states that employers cannot discriminate against employees for a disability. The bar on discrimination includes any negative treatment towards an employee who has a disability that requires medical cannabis for treatment of their condition, or an employee who is addicted to cannabis. Section 17(2) of the Code provides that if someone’s disability (or related cannabis use) negatively affects their work, an employer has the duty to accommodate that employee by altering the employee’s work duties, unless the accommodation equates to an undue hardship for the employer. In rare cases, this may include allowing an employee to use cannabis at work. Effectively, these protections allow for employees to use cannabis without repercussions if they have a very specific prescription for, or are addicted to, cannabis, and their use does not significantly impact their work. However, the accommodation of addiction usually includes mandatory treatment for the affected employee.
The jurisprudence has stipulated that discriminating against someone by not accommodating their disability is reasonable if the employer can show that the discrimination is required as part of a bona fide occupational requirement. Furthermore, sections 23-32 of the Occupational Health and Safety Act (OHSA) make it clear that employers and employees must ensure workplaces are safe at all times. This includes not allowing someone’s impairment from cannabis use to affect the safety of themselves or others. Therefore, accommodating someone’s disability may be secondary to the safety of everyone in the workplace. Being forced to accommodate a worker’s cannabis use that subsequently risks the safety of the workplace is almost guaranteed to be an undue hardship on the employer. In addition to these safeguards, employers may create strict workplace policies relating to cannabis use. These policies can make not using cannabis during or after work a bona fide occupational requirement, require individuals to disclose their addictions and accept treatment, and drug test employees in safety sensitive industries. If employees willingly break these policies, employers may terminate or discipline them with minimal recourse from the law. Notably, the collective agreement protections given to unionized employees usually provide far more protections against such policies than offered to their non-unionized contemporaries.
Where does the above legal labyrinth leave recreational cannabis users? Unfortunately, the protections for this population are almost non-existent, with some limited exceptions in the unionized context. In addition to the ability of employers to create strict policies for safety sensitive industries, and cannabis users generally, there are multiple legislated zero-tolerance industries for cannabis use and possession.
One of the most severe zero-tolerance sanctions is for individuals who are employed as commercial motor vehicle drivers. Recent amendments to section 48 of the Highway Traffic Act (HTA) have made it illegal for anyone who is a commercial motor vehicle operator to have any presence of cannabis in their system. If they test positive for cannabis, commercial vehicle operators face a license suspension and fine without the ability to contest. If the same operator has a prescription for medical cannabis, and the assessing officer determines that the operator is not too impaired to drive, they may get away without sanction. Recreational cannabis users do not have this added protection. The OHSA Regulations also identify three other zero-tolerance industries. OHSA Regulations 854, 855, and 629state that employees in mining operations, oil and gas operations, and diving operations, respectively, cannot have any presence of cannabis in their system. Additionally, regulations 854 and 855 state that an employee in mining operations, and oil and gas operations, respectively, cannot “carry” a drug on their person while at work. These regulations also have protections built in for those prescribed medical cannabis.
Concerns encompassing employee rights to cannabis use are threefold. Firstly, with the recent media coverage of recreational cannabis legalization, employers are worried about an intoxicated workforce. This may potentially lead to strict workplace policies that could instill a heightened level of mistrust into Canada’s employment dynamic. Secondly, if you work in mining operations, or oil and gas, and you happen to leave some perfectly legal, albeit not prescribed, cannabis in your pocket while you are at work you may be at risk of contravening OHSAregulations.
Thirdly, if you have a prescription for cannabis or are living with cannabis addiction, notwithstanding the above caveats, you are permitted to have some cannabis in your system within any strict employer policy or zero-tolerance industry. However, if you are a recreational user, within these same environments, any presence of cannabis in your system could cost you your job. The testing instruments used to measure the level of THC (the psychoactive ingredient in cannabis) in someone’s body are generally flawed and not nearly as accurate as a breathalyzer is for alcohol. Many studies, such as this, highlight that a person can test positive for cannabis weeks, or even months, after consumption. This is highly problematic for recreational cannabis users who happen to work for employers with strict cannabis policies and/or in legislated zero-tolerance industries. For example, if you are a commercial motor vehicle driver who smoked a joint on Saturday, and do not have a prescription for the cannabis, you could have your license suspended, and potentially lose your job, on Monday. This is because the testing instruments often do not detect actual intoxication versus merely the presence of THC in your body.
The idea of recreational cannabis legalization creating a trump card for cannabis use is incorrect. There are many restrictions on cannabis use, even for those who have a medical requirement to use the substance. Furthermore, those who use cannabis recreationally have almost no rights when it comes to cannabis use and their employment. Therefore, employees should be aware of the repercussions they may face within, and outside, their workplace if they use cannabis. Additionally, employers need to be explicit when outlining their workplace policies and the applicable legal standards to ensure that their employees are fully informed of their specific workplace standards relating to cannabis use.
Filip Szadurski, “Are You Protected?: Recreational Cannabis Use and Employment” Canadian Law of Work Forum (April 22 2020): https://lawofwork.ca/?p=12370
British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907at para 83.
Stewart v. Elk Valley Coal Corp 2017 SCC 30at para 56.