Canada: Employers Face Growing Marijuana Issue

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By Peter Menyasz

Dec. 8—The bad news is that Canadian employers will face serious employee relations issues if the federal government follows through on its 2015 election promise to legalize marijuana use, the worse news that they’re already facing those issues even without legalization, employment lawyers say.

Canadian law requires companies to accommodate employees who use legally prescribed marijuana except in safety-sensitive jobs, as well as employees who are addicted to the drug. The frequency of these situations in Canadian workplaces is increasing, and the pace will accelerate once marijuana is fully legalized, the attorneys say.

‘Already an Issue'

Canadians can get a prescription for medical marijuana easily, and employers have a duty to accommodate medical marijuana users to the point of undue hardship, says Toronto employment lawyer Andrew Monkhouse.

As with opioids like oxycodone, whether an employee’s use of marijuana in the workplace is okay depends largely on safety issues, Monkhouse, managing partner and owner of Monkhouse Law, told Bloomberg BNA. Even if marijuana is fully legal, employees won’t be able to smoke it indoors and won’t be able to work while impaired, so in that sense, legalization won’t have a huge impact on employers.

“It’s already an issue employers have to deal with on a frequent basis,” Monkhouse said.

The growing numbers of employees asking for accommodation for medical marijuana use is creating “complicated” situations for employers in safety-sensitive environments such as construction and the food industry, said Sara Yousefi, an associate with Toronto law firm Loopstra Nixon LLP.

“How impaired are they? There’s no way to tell,” she said.

‘Friction'

The medical community’s acceptance of marijuana as medicine adds a “very unusual” dimension to the problem for employers, George Waggott, a partner in the Toronto office of McMillan LLP, said.

Medicinal marijuana use is already causing issues for employers with zero-tolerance drug policies, Yousefi said.

“That’s something that needs to be revisited,” she said.

One question is whether employers will be able to test employees for marijuana use and impairment, Waggott said. There have been some cases on that issue, but there is much more litigation to come.

“There’s going to be friction on this issue for the next few years,” Waggott said.

Under the Supreme Court of Canada’s 2013 ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd ., Canadian courts apply a “very strict test” to random drug testing, requiring both a strong reason for testing and for employees to be in safety-sensitive jobs, Waggott said.

The 6-3 decision in Irving Pulp & Paper restored an arbitration ruling that found unreasonable the company’s annual mandatory alcohol testing of about 10 percent of employees in safety-sensitive jobs. The arbitrator found random testing offered too small a potential benefit in increased safety relative to the significant loss of individual privacy.

Case Law

While it’s okay for an employer to dismiss an employee for using marijuana while performing a safety-sensitive job, there is a growing number of cases where employees dismissed after being caught smoking marijuana on the job have filed discrimination claims under human rights laws asserting they had the right to accommodation, Yousefi said.

The problem is that employees may not always inform employers of their medical need for marijuana, and “employers can’t accommodate what they don’t know about,” Yousefi said.

The extent of the need to accommodate medicinal marijuana, even in potentially safety-sensitive jobs, is highlighted in two 2015 human rights rulings in British Columbia:

  • Old v. Ridge Country Contracting, in which a tribunal refused to dismiss a claim by a terminated heavy equipment operator because the employer failed to engage in an accommodation process with the employee and
  • French v. Selkin Logging Ltd., in which a tribunal found that dismissal of a heavy equipment operator was discriminatory because the employee was effectively disabled, but upheld the dismissal nevertheless because the employee failed to notify the employer of the disability, and requiring the employer to accommodate without confirmation that it would be safe amounted to undue hardship.

Other relevant cases have included:

  • United Steelworkers, Local 7656 v. Mosaic Potash Colonsay ULC, in which a Saskatchewan court upheld the need for a welder to supply the employer with his application for medical marijuana authorization and medical records on his treatment plan and its potential impact on his ability to work and
  • Ottawa-Carleton District School Board v. Ontario Secondary Teachers’ Federation, in which an Ontario arbitrator upheld the dismissal of a school custodian for smoking marijuana at work, allowing consideration of video surveillance evidence prohibited by the union’s collective bargaining agreement.

The issue of safety and marijuana legalization was also recently raised by Canada’s oil and gas sector. In a September 2016 letter to Prime Minister Justin Trudeau in response to the government’s creation of the Task Force on Marijuana Legalization and Regulation, industry-funded safety group Enform warned that there is no doubt marijuana use is “incompatible” with work in a safety-sensitive workplace and called for a prohibition against its use in such workplaces.

Accommodation Applies to Addiction

Employers should keep in mind that the duty to accommodate isn’t restricted to marijuana’s role as a medical treatment, the lawyers warned. Employers must also accommodate it as a source of addiction, Monkhouse said.

That’s easy to handle now because the drug is illegal for most uses, but will be trickier if it’s legal. An employee accommodated for marijuana use to treat back pain, for example, could need ongoing accommodation if treatment leads to addiction, Monkhouse said.

Canadian law currently requires a very low level of proof for accommodation based on addiction, so employers and employees will need to have clear discussions on what is required in the workplace and what is safe, Monkhouse said.

Yousefi agreed that requests from employees for accommodation will increase when marijuana is legalized and warned that employers will need to update their workplace rules to define impairment and set boundaries and disciplinary consequences for violating those rules.

“Employers and employees have a duty to be proactive on this issue,” Yousefi said.

Health Plan Coverage in Question

Coverage of medical marijuana under health benefits is another issue employers must address, the lawyers say.

Health insurance plans generally don’t pay for it now, but legalization will lead to increased pressure on employers to have insurers cover it, both Yousefi and Monkhouse said. Yousefi added that for now it is important for employers to ensure that employees have proper medical documentation to support marijuana use.

Medical notes need to provide details, including the conditions being treated, appropriate dosage, frequency of use and whether the employee can still perform his or her regular duties, Yousefi said, adding that if employees lack that supporting documentation, it may provide cause for dismissal.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

The ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. is available here, the ruling in Old v. Ridge Country Contracting Ltd. here, the ruling in French v. Selkin Logging Ltd. here, the ruling in United Steelworkers, Local 7656 v. Mosaic Potash Colonsay ULC here and the ruling in Ottawa-Carleton District School Board v. Ontario Secondary Teachers’ Federation here.

For more information on Canadian HR law and regulation, see the Canada primer.

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