Recreational cannabis became legal in Canada on October 17, 2018. This has caused confusion for some employers about whether recreational and medical cannabis should be handled differently under human rights law. A guide from the Ontario Human Rights Commission explains how human rights laws apply to each. The guide was drafted for Ontario employers but the principles apply to all employers across Canada.
The recreational use of cannabis is not protected by human rights law unless there is an actual or perceived addiction. Employers can create rules about recreational cannabis usage at work. They can prohibit possession of any recreational cannabis at work even though possession of small amounts is now legal. They can also prohibit employees from reporting to work under the influence of recreational cannabis even if use is legal. Employers can discipline employees for breaching these or other similar rules.
Human rights law continues to apply to cannabis use in the same way it did prior to the legalization of recreational cannabis. It can apply to cannabis use for medical conditions that are a disability, and to cannabis use that is or may be perceived to be an addiction. This is the same way human rights law applies to any other drug use.
Medical cannabis should be treated the same as any other substances used in the treatment of medical conditions. Employers still have the right to request confirmation of a disability-related need to use medical cannabis, and for information about any functional restrictions from the disability or medical cannabis use. Employers are not required to accommodate use of medical cannabis if it creates an undue hardship, for example, a serious safety risk.
If there is no undue hardship, the employer may be required to accommodate the use of medical cannabis including use at work and in different forms. For example, if the medical condition requires use of cannabis during working hours and there is no safety risk, the employer may have a duty to accommodate an employee smoking or vaping on break in compliance with smoke free legislation. Similarly, if an employee consumes medical cannabis through an edible, this may be permitted under the duty to accommodate if it does not interfere with the employee's safe performance of the essential duties of his or her job.
Addiction Issues in the Workplace
Human rights law across Canada prohibits discrimination, and impose a duty to accommodate individuals with disabilities. Disability is broadly defined and includes an addition to drugs. This means an employer has an obligation to accommodate, to the point of undue hardship, an employee who is addicted to recreational cannabis. The same procedural and substantive requirements apply to this type of accommodation as to any other disability.
Suspected or perceived addictions raise special issues. A suspected addiction may trigger a duty to ask an employee about a need for accommodation. A perceived addiction can also trigger this duty to ask about a need for accommodation. It is also protected from discrimination.
Takeaways for Employers
Employers must understand the essential differences between recreational and medical cannabis to effectively manage the impact of cannabis in the workplace.
Recreational cannabis use without an addiction is not protected by human rights law. Employers can discipline employees who breach their rules about recreational cannabis at work. It is only where there is an addiction issue or use is for a medical condition that could be a disability that human rights laws apply. In those situations, the employer must be cautious not to violate an employee's right to be free from discrimination on the basis of disability and of the duty to accommodate.