Workplace Law for Cannabis Users

workplace law for Cannabis Users | Woman with cannabis leaf tattoos smiling in front of a curtain with the Canadian Maple Leaf

Workplace Law For Cannabis Users | Authors: Kimberley Sebag and Bram Lecker

Cannabis Is Legal

On October 17th, 2018, cannabis was removed as a regulated item under the Controlled Drug and Substances Act. You may legally use it for both recreational or medical use. If you are a user, then you should also become familiar with how workplaces are approaching this matter. Our employment laws do not directly address cannabis use. Therefore, we may see an influx of cases go to trial before our provincial government determines whether we need additional regulations to govern its use. In the meantime, the fact remains that unlike tobacco consumption, employers will not give you carte blanche to use cannabis as you see fit over your lunch and coffee breaks. This article will help you understand workplace law, so you can navigate the matter with tact, prudence and common sense.

Cannabis Use and The Law

Cannabis legalization was directly targeted to curtail the illegal market and cannabis use among youth. In Ontario, the minimum age for consuming it is commensurate with the legal age for consuming alcohol and tobacco products. At 19 years old, you can use, possess and grow it for recreational purposes. The law is very specific about where cannabis can and cannot be consumed.  And more importantly, the law remains unchanged for driving while impaired with cannabis. Just like alcohol, this is dangerous and illegal.

Workplace Law for Cannabis Users

Rightfully, employers must remain concerned with matters of safety at their workplaces. Cannabis use, for some individuals, can result in impairment and reduced reaction time. With no employment laws in place specifically to guide them, employers have filled the gap by amending existing workplace policies. However, some of these changes are sparking heated debates.

The aviation industry has imposed some of the harshest regulations, creating and enforcing an outright ban on marijuana use. Air Canada prohibits all employees in flight operations and aircraft maintenance from any cannabis use, both on and off-duty. WestJet Airlines has announced it will follow suit in a similar capacity. Our laws, however, do not allow employers to intrude on their employees personal lives. Only court challenges will prove whether such bans will withstand legal scrutiny.

Drug Testing

Other industries, such as the oil rigging industry, have amended and imposed regulations in a less intrusive way. Their employees must remain free of  of impairment at work. Rather than requiring them to be drug and alcohol-free, such policies recognize that consumption does not necessarily equate with impairment. Consequently, some employers have implemented measures, like morning fitness tests, to ascertain their employees’ readiness for the job and to confirm they are free from illness, excessive tiredness or drug and alcohol impairment. They can then send an individuals for blood or urine tests if their performance is suspect of impairment.

Marijuana remains traceable in the human body for extended periods of time. However, its presence does not necessarily imply impairment. Could a positive drug test lead to a termination? Once again, a challenge in court will determine whether this scenario counts as an unjust dismissal.

Accommodating Medical use of Cannabis

The law has permitted the medical use of cannabis for several years now. Consequently, we have seen a steady rise in employment disputes because of it. In 2013, the nuances of this matter made headlines when the RCMP stripped veteran officer Cpl. Ron Francis of his uniform for smoking marijuana in public. Very sadly, Cpl. Francis committed suicide shortly after, magnifying how emotionally charged this matter is for individuals dependent on marijuana for medicinal purposes.

A similar, more recent dispute, involves the Toronto Transit Commission (TTC) where employee, Elaine Farrell, believes her employer is standing in the way of her medical recovery. She was prescribed opioids to manage the pain of herniated discs and fibromyalgia. To wean her off the addictive and dangerous opioid side effects, her physician recommended CBD oil treatment, a derivative of cannabis. With negligible amounts of THC, it minimizes the risk of intoxication. And Ms. Farrell’s condition improved greatly with the treatment.

Ms. Farrell held a safety sensitive position as a subway operator. At first, the TTC permitted her to use CBD oil, but not close to or during her shifts. Gradually, they made the terms more difficult after consulting with an “independent medical expert”. To keep the public transit system safe, they insisted she only use CBC oil on the weekends. And eventually, they banned her from using it completely. In fact, they insisted on a letter from her physician confirming he would not prescribe it. Instead, they offered accommodion by offering her a lower paid position elsewhere. This left her with the untenable choice of going back on dangerous opioids to retain her existing position and income.

Are Employers Ready for Cannabis?

On so many levels, this goes completely against the intent of accommodation principles in human rights law. However, Ms. Farrell is a unionized employee with collective bargaining terms governing her employment. Her union has taken up this case after noticing a pattern of discrimination against other employees in similar circumstances.

In our opinion, the TTC managed the matter like a workplace unprepared for the reality of cannabis use. The safe operation of a workplace should rightfully remain a top priority for employers. However, problems will arise when employers push the envelope and invade personal rights and matters of medical privacy. This is where an employment lawyer must step in.

If you are an employee facing unfair discrimination or harassment because you are also a cannabis user, contact us. A consultation with one of our experienced employment lawyers will help you understand your rights.

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