Cannabis Is Still a Hazy Workplace Issue in Canada, Years After Legalization

James Eaton

​Since the implementation of Canada’s federal Hashish Act in 2018, office hashish use has been a very hot topic in work regulation.

Several employers were, and remain, worried about how to mitigate the hazard of office impairment from hashish use. What insurance policies will need to be applied in the place of work? Is it fair to enforce drug testing in the office? Is the use of hashish for clinical applications permitted in the place of work?

The use of nonmedical cannabis in the workplace can be when compared to the use of alcohol—neither is permitted. On the other hand, the method differs when the use of cannabis is for a clinical function, for illustration continual back discomfort.

Even though an employer has a responsibility to accommodate an employee’s incapacity, workforce simply cannot declare the suitable to be impaired and make any chance at function. An employer would extend accommodation to staff members using health care cannabis in the identical way as it would for any other approved medication. On the other hand, the responsibility to accommodate is constrained.

Even with a health care prescription, an personnel can’t eat cannabis in an unfettered manner that is unsafe or compromises the safety of on their own or other folks. For illustration, a health care prescription does not entitle an employee to unexcused absences or to walk all-around the place of work superior.

Office safety matters and the Ontario Human Rights Tribunal created this apparent in the situation of Aitchison vs. L & L Painting and Decorating Ltd. In this case, an personnel was terminated for ingesting hashish at the workplace. However the staff had a professional medical prescription for the use of cannabis to aid with his back again ache, the Tribunal held that impairment was a authentic security issue and the worker experienced no proper to ingest hashish in the place of work regardless of his clinical problems.

The Tribunal ruled versus the worker because he did not provide proof attesting to the truth that he experienced from an ailment that necessary lodging nor did he ask for lodging for the use of health care cannabis in the place of work.

The Tribunal stated that “the applicant does not have an absolute appropriate to smoke marijuana at operate regardless of whether it is made use of for healthcare uses.” Companies can rest assured that the use of professional medical cannabis at work is not unrestrained and personnel have no complete ideal to take in professional medical cannabis at function.

So, how impaired does an employee require to be in get to be considered as a safety threat in the place of work? The respond to is not definitive.

There is a lack of trusted tests steps to sufficiently check cannabis impairment concentrations. Not to mention, hashish can be ingested in a variety of ways—inhalation, oral, topical. Every single strategy provides with it unique attributes which tends to make it tougher for companies to visibly detect.

Definitely, an employee does not will need to sit in a cloud of smoke to be caught substantial. Consuming cannabis-infused brownies qualified prospects to the similar final result without having the fairly clear bodily traits that come with smoking the drug.

An employer may possibly implement a place of work coverage that prohibits the use of cannabis while permitting for the use of an alternate ache treatment that discounts with the aliment in concern devoid of generating the brain-altering effects of cannabis.

That staying claimed, what about a nonintoxicating different, these kinds of as CBD? CBD-infused products and solutions generally do not generate psychoactive effects, but there could be doable aftereffects. As these kinds of, it is generally lumped with each other when speaking of cannabis use. Canadian legal guidelines stay blurry with regards to the legality of CBD.

Nevertheless businesses could be tempted to use drug testing to guarantee that protection polices are fulfilled, for the most element they simply cannot issue staff members to drug exams. Doing so is an infringement on an employee’s proper to defense of privateness, as properly as a violation of Ontario’s Human Rights Code.

Drug screening in the place of work is limited to extremely distinct conditions. These types of instances consist of very harmful workplaces or proof of affordable lead to. It tends to revert to the problem of security: does a receptionist will need to be administered a drug take a look at? Very likely not. His or her position does not endanger their security or the protection of other employees in the workplace.

What about a forklift driver who operates significant machinery? Drug testing may apply mainly because the personnel is accountable for dealing with significant equipment. This is an objectively perilous job in comparison to a receptionist dealing with paperwork. Despite the fact that, even in this kind of instances wherever the work setting dictates the require for security-delicate measures, there ought to continue to exist a acceptable cause or an real difficulty in the place of work that requires the facilitation of a drug check.

Comparable to place of work policies involving the use of alcohol, companies have the ideal to carry out guidelines prohibiting the use of cannabis in the workplace. Whilst Aitchison is good news for employers, it is essential for employers that nonetheless use office insurance policies with out-of-date language this kind of as a prohibition of “illegal medication” and alcoholic beverages to revamp their guidelines as cannabis is no for a longer period an unlawful drug and these types of prohibitory language arguably does not seize the use of hashish.

What are methods for employers to educate employees about hashish use?

  • Build and tell all staff or reiterate the firm’s drug and liquor policy.
  • Connect to employees that they ought to arrive to the place of work match and equipped to carry out their do the job tasks.
  • Coach upper and senior management to check and be conscious of the signs of cannabis use.
  • Provide personnel education on the interplay between cannabis use, substance abuse and psychological health.

The legislation bordering hashish use will continue to evolve as the technological know-how and approaches for tests hashish impairment are refined. With much better testing procedures for hashish, assessment of hashish impairment will be much easier. As litigation boosts in hashish regulation, a lot of uncertainties will be resolved that will even more get rid of gentle on the balancing act involving the accommodation of professional medical hashish in the place of work and the significance of a safe operate setting.

Howard Levitt and Shloka Saini are attorneys with Levitt Sheikh in Toronto. © 2022 Levitt Sheikh. All legal rights reserved. Reposted with authorization of Lexology.

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