The legalization of recreational cannabis in Canada is official.
In preparation for this new reality the Ontario Human Rights Commission has provided guidance on how cannabis use relates to Ontario’s Human Rights Code, which protects people from discriminatory treatment in employment amongst other areas.
As explained in the Commission’s statement, employers can generally expect employees will be free from impairment, whether it is a result of cannabis, alcohol or other drugs, while at work. With that said, employers have a legal duty under Ontario’s Human Rights Code to accommodate the disability-related needs of employees who use cannabis for medical purposes, or are addicted to cannabis.
Accommodation can include changing some job duties, offering alternative work, or even allowing an employee to take breaks throughout the workday to consume cannabis. The duty to accommodate ends however if the person cannot ultimately perform the essential duties of the job after accommodation has been tried and exhausted, or if the employer would suffer undue hardship.
Undue hardship is often seen as either significant health and safety risks or excessive costs. As explained in the Ontario Human Rights Commission statement, it would likely amount to undue hardship to allow any employee, regardless of a disability or addiction, to be impaired by cannabis while doing safety-sensitive jobs like operating heavy machinery.
An example where the duty to accommodate ended was seen in the case Aitchison v L & L Painting and Decorating Ltd. In Aitchison, the Human Rights Tribunal of Ontario found that the termination of a painter who smoked cannabis for a medical purpose at work during his breaks was not discriminatory as the painter worked on the outside of a building 37 floors above ground. It was concluded that his actions represented a genuine health and safety risk given the safety sensitive nature of the job.
The policy statement from the Ontario Human Rights Commission is a good reminder for both employers and employees, that while cannabis laws have changed, human rights remain the same.
Thomas Masterson finished his articles at Harrison Pensa and is an associate with the Restructuring, Insolvency and Bankruptcy group at the firm.