On the horizon of Cannabis legalization…
The question that remains for many workplaces ahead of the legalization of cannabis is: are workplaces ready? With the legalization of cannabis only a few days away, the Ontario Human Rights Commission says we are. While we are entering into a period of uncertainty and of a new reality, the OHRC says that employees cannot show up to work impaired and that employees must continue coming to work ‘fit for duty’ in order to perform the essential duties of their job.
The Commission says that what remains unchanged is the treatment of cannabis use and human rights. As with alcohol and other drugs, human rights protections for people with disabilities remains the same. Employers are required to accommodate those using cannabis for medical purposes or those addicted to cannabis. However, this does not mean that accommodation is absolute and that cannabis impairment is allowed in the workplace. Accommodation ends if the person cannot perform the essential duties of their job or if undue hardship exists.
While the human rights landscape is not affected by cannabis legalization, what remains a challenge for many workplaces in Canada is testing and managing impairment. The Federal government has passed the legislation legalizing recreational cannabis use, but the government did not pass corresponding employment legislation to respond to the many challenges of cannabis legalization. This lack of framework may result in an increased safety risk in many workplaces, especially those in a safety-sensitive industries.
A zero-tolerance alcohol and drug use policy is a start and a proactive tool to managing impairment in the workplace, as well as testing for impairment from all substances (drugs and/or alcohol) in the workplace. Although testing is limited, it is also an effective tool to managing impairment. Testing is confined to three circumstances: tests for reasonable cause, post-incident testing and as part of rehabilitation program. Testing for those with a disability or an addiction to cannabis may be permitted if an employer can illustrate that such testing is a requirement of the job. Random testing is not permitted in Canada and is only permitted for those with safety-sensitive positions who have minimal to no supervision and whose workplace has a known substance abuse problem. However, the standard for random drug testing is high.
As mentioned, workplace policies are an effective tool to managing drug and alcohol use in the workplace. Policies should be clearly written, contain employee expectations, be communicated to employees and not be discriminatory to those employees who require accommodations. While the impact of cannabis legalization has yet to be seen, education to cannabis legalization and what is and is not acceptable at work is vital to ensure our workplaces remain a safe place to be.
Read the article below and contact our team if you need any assistance preparing for or responding to the legalization of cannabis.