Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.
The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.
Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:
· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;
· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;
· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and
· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.
Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.
So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.
If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.
Need an effective workplace policy for smoking, vaping and cannabis use?
Since September 8, 2016, Bill 132 substantially upgraded Ontario’s Occupational Health and Safety Act and employers’ obligations for workplace (sexual) harassment. These sweeping changes impose new, proactive measures on all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.
Employers in Ontario must:
make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
update the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.
establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
take care to ensure the Program complies with the new law, including:
- measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);
- alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;
- explain fully how incidents or complaints of workplace harassment will be investigated and addressed;
- explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;
- explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and
- affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;
train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;
Tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
investigate all incidents and complaints of workplace harassment (fairly and completely);
retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
only utilize an investigator who is, and who will be perceived as, competent and impartial;
make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.
Your “job description” when you accept your employ may be more important than you realize.
When an employer changes or modifies an employee’s duties or role, if the change is substantial, it may amount to a “constructive” (rather than wrongful) dismissal.
Effectively, in order to potentially qualify as a change that justifies the employee refusing to continue and suing for damages, the change must meet this two-part test:
firstly, the change must be made unilaterally by the employer and be considered a breach of an express or implied term of the employment contract, which substantially alters an essential term of employment; and
a reasonable person in the same situation as the employee would have believed that an essential term of employment was substantially changed.
In a recent case, a senior manager, who had been employed by a large municipality for eighteen years, resigned from his employ, alleging that the employer had substantially altered his job duties and responsibilities. He also sued for constructive dismissal.
The Court applied the test above and, in doing so, held that the new job assignment given to the employee involved no change in pay or title. There was also no loss of status or prestige. The Court also held a unilateral change in duties or a role, even if substantial, was an implicit part of the job as set out in the particular job description for the employee. The employee had not been hired to perform any one specific function and his expected duties were broad in scope. It was not an express or implied term of his employment that he would always maintain the same duties and responsibilities.
Employers should ensure that job descriptions are broadly worded, not narrowly defined. The key issue is the nature and scope of the duties expected of the employee. A broadly cast job description will allow the employer more flexibility to reassign work, change duties or alter an employee’s role, including if the business evolves or changes over time. In this case, the Court held, based on the broadly worded job description, the employer had the right to reassign files and projects without threatening the employment relationship.
The employee lost. No damages for “constructive dismissal” were awarded.
Whalley v. Cape Breton Regional Municipality, 2018 NSSC 325 (CanLII)