October 18th, 2018
The short answer to whether an employer has a duty to accommodate medical cannabis is yes.
The use of medical cannabis, when duly prescribed by a physician, is considered as any other prescription drug used to treat a disability— it triggers a duty to accommodate under section 17 of the Ontario Human Rights Code.1 Section 17 requires employers to accommodate an individual’s disability to the point of undue hardship. In the case of medical cannabis, this accommodation may include allowing individuals to use cannabis in situations where such use would otherwise be prohibited.
The question of what constitutes undue hardship has been a pertinent topic in human rights tribunals across the country. In 2013, the Human Rights Tribunal of Ontario examined this issue in the context of allowing employees to consume cannabis on workplace property in one case. In that case, the complainant (an employee of the respondent restaurant) was smoking medical cannabis outside of the restaurant entrance. He was asked to refrain from smoking in close proximity to the entrance. The employee’s failure to follow this request resulted in his dismissal. The Tribunal found that permitting the complainant to smoke cannabis in close proximity to the restaurant’s entrance would have imposed to undue hardship on the restaurant and thus, the dismissal was warranted.2
A recent arbitration decision from Newfoundland and Labrador deals with an employer’s duty to accommodate medical cannabis in safety sensitive workplaces. The grievor in that case was referred to work in a safety sensitive position at a hydroelectric facility. The employer had a pre-employment drug screening process and decided not offer the grievor the job after finding out about his medical cannabis use. The Arbitrator dismissed the grievance, finding that accommodating the grievor would constitute undue hardship under Newfoundland’s Human Rights Act.3 He specifically noted that the employer’s statutory obligation to ensure a safe and productive workplace, pursuant to Newfoundland’s Occupational Health and Safety Act outweighed the grievor’s need to smoke in the restaurant’s entrance. The evidence called in the arbitration suggested that cannabis can have lasting effects of impairment and this created a risk to the employer’s “safety sensitive” jobsite. The Arbitrator ultimately concluded that the employer was unable to readily measure impairment from cannabis based upon currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the employer.4
In future cases, courts and tribunals may not be as willing to conclude that employers cannot readily measure impairment from cannabis as technology and experience assessing for impairment from use of cannabis evolves, and more valid assessment and testing methods for detecting cannabis impairment are developed and found to be adequate. Moreover, some strains of cannabis, such as CBD dominant strains, have therapeutic non-psychiatric effects and thus, evidence could be brought in future cases and arguments raised that those would not have the same risk to safety sensitive workplaces. Of course, cannabis users should always consult their healthcare practitioner before they consume any cannabis so that they understand the likely effects and risks.
At Lerners LLP, we have experience advising both employers and employees with respect to the use of cannabis in the workplace. We would be happy to advise you on those issues.
1Human Rights Code, R.S.O. 1990, c. H.19.
2Gibson v. Ridgeview Restaurant Limited, 2013 HRTO 1163.
3Human Rights Act, S.N.L. 2010, c. H-13.1.
4International Brotherhood Lower Churchill Transmission Construction Employers' Assn. Inc. and IBEW, Local 1620 (Tizzard), Re, 2018 CarswellNfld 198, 136 C.L.A.S. 26.