In July of 2018, Elle – a customer service representative – was told she couldn’t take her CBD oil at work because it would “look bad” on the company.
Her medication had no effect on her co-workers’ safety.
“I have a debilitating disease,” she explained, “and I wouldn’t have been able to function without it.”
Elle is among hundreds of cases of Canadian medical cannabis patients with employers who have refused to accommodate their prescriptions – regardless of whether they were impaired at work.
But there’s always another side to the story. Employers shouldn’t have to allow impairment if it impacts performance, attendance, or safety.
So, what’s the balance? What are your rights as a concerned employer or cannabis-reliant employee?
The Golden Rule
Workplace cannabis regulations largely come down to one fundamental rule: employers have a duty to accommodate to the point of undue hardship on the company.
That means if an employee genuinely needs to consume cannabis at work, the company’s policies should allow them to do so – albeit with restrictions.
As per the Ontario Human Rights Commission (OHRC), accommodation can be considered to cause undue hardship if it has significant impact on “cost,” “outside sources of funding,” or “health and safety requirements.” And the cost has to be relatively high – paying the employee during a slightly extended lunch break so they can take their CBD oil probably won’t be sufficient.
In the case of Elle, it wouldn’t have mattered if providing accommodation was inconvenient or made the company “look bad” (unless, for example, that impacted your ability to raise equity financing); the employer should have been required to accommodate.
Determining accommodation is a collaborative effort between the employer, employee, and a medical professional. Accommodation could be as simple as providing sufficient breaks for consuming CBD oil, or as significant as changing the employee’s hours and adjusting their performance standard (up to the point of undue hardship).
The legalities surrounding cannabis in the workplace are a bit vague, so it’s best to find a system of accommodation that’s agreeable to everyone.
What Justifies Accommodation?
There are two primary reasons why an employee would warrant being accommodated for cannabis use. Either they have an addiction to the substance (unlikely, but possible) or they consume cannabis for medical purposes – as with Elle.
In either case, a medical professional should confirm that the employee not only needs cannabis, but that they need it during work hours.
And remember that accommodation doesn’t mean the employer is held hostage. The method of accommodation is ultimately determined by the employer, not the user. If the employer wants you to momentarily leave the workplace while you medicate, it’s entirely their prerogative to demand it.
What Doesn’t Justify Accommodation?
If you’re in a safety-sensitive position, you can’t be impaired at work. Period.
That said, there’s no hard-and-fast rule for what constitutes a “safety-sensitive” position. If an employer can reasonably explain why impairment could result in harm to an employee, the position qualifies. This generally includes (but isn’t limited to) any position which requires driving, operating heavy machinery, or looking after children.
If you have a prescription that requires you to take THC during working hours, accommodation for safety-sensitive positions usually takes the form of reassignment/internal transfer. If that isn’t an option for the company or the worker isn’t qualified for any other position, you could also adjust the employee’s hours to align with their medication schedule. After that, the company may, unfortunately, have exhausted their options for accommodation and the worker could be let go.
Recreational use generally also won’t justify accommodation unless the user qualifies as having an addiction.
An addiction is considered a disability, and accommodation must be provided such that the employee can best perform the essential duties of their job. Again, accommodation must be provided to the point of undue hardship and should be determined on a case by case basis.
You can’t discriminate against someone for recreational use away from work, but it isn’t discrimination if they’re impaired on the job.
So, if you’re a recreational user, make it easy on everyone and don’t be impaired at work.
Accommodation should be easy if the employee isn’t impaired at work. And not all cannabis leads to impairment.
The employer and employee should communicate openly about if and when the user is impaired and how that could impact the workplace.
For example, Elle discussed her prescription which included CBD oil during the day and CBD/THC oil in the evening. CBD absent of THC has “no demonstrable relationship to job safety and performance,” but THC leads to impairment. That means while she is impaired outside of working hours, it doesn’t affect her day job and therefore required very little accommodation.
Not only is an employer allowed to speak to your medical practitioner, it’s encouraged that they do so. While the user doesn’t have to disclose the reason they require medical cannabis, connecting your boss to your doctor can help clear the haze surrounding the drug and work toward a symbiotic solution.
Testing for Impairment
In most situations, employers cannot test employees for drug or alcohol consumption. Ontario policies for drug and alcohol testing make sure you’ve exhausted every other option before administering a test.
And there’s very little allowance for random testing, meaning you need a reason to test an employee. Employers can only call for a drug test “after a workplace accident or a ‘near-miss’, where there are reasonable grounds to believe that someone is impaired by drugs, or where a person is returning to work after treatment for a drug addiction.”
Reasonable grounds can include situations where an employee has been caught with/consuming drugs or alcohol, or where the employee exhibits signs of impairment.
Even then, there may still be some discrepancy over whether a test is warranted, but it will be easiest to justify if the position is, again, safety-sensitive.
One section of the Ontarian policy that seems particularly relevant to cannabis is the clarification that drug tests must be used to determine “actual impairment of an employee’s ability to perform or fulfil the essential duties or requirements of the job at the time of the test,” and not the “presence of drugs or alcohol in the body.”
That means, for example, a urine test that demonstrated an employee had consumed cannabis sometime within the last month or two isn’t sufficient for determining action against an employee. That’s because even though this proves the worker has consumed cannabis recently, it doesn’t prove they’ve been impaired on the job.
That also means that pre-employment screenings are also usually prohibited because they, again, don’t test for impairment on the job.
So how can you tell if an employee is impaired?
The short answer: someone will need to be trained.
According to the Canadian Centre for Occupational Health and Safety (CCOHS), “supervisors should be educated and trained regarding how to recognize impairment.” In some cases, that may prove difficult. Even if they are educated, it’s hard to stay impartial if you think an employee is high on the job. That’s why CCOHS also recommends “when assessing an individual for impairment, […] a second trained person be present to help make sure that there is an unbiased assessment.”
Because there isn’t an established method of judging cannabis impairment, supervisors will likely be looking for the usual signs: bloodshot eyes, lethargies, smell, lack of focus/coordination, and accelerated heart rates.
The Safety Paradox
Alright, so, as an employer, you’re required to accommodate prescriptions and you can’t perform a drug test.
But you also have a responsibility to ensure the safety of their employees. How can you do both at the same time?
The important thing to remember here is that employees have to disclose if they’re using cannabis that could cause impairment. If they don’t qualify for accommodation, they can’t be impaired at work (or so your Drug and Alcohol policy should specify). Make sure employees are well aware of your policies. If they haven’t signed off on having read and understood the company’s drug policies, you could still be liable for accidents they’ve caused while impaired.
If they’re an accommodated user, there are three possibilities. Either their impairment impacts the safety of only themselves, their impairment impacts the safety of others, or their impairment has no safety risks.
If the latter is true: no problem.
If their impairment impacts the safety of others and the provided accommodation allows them to be impaired on the job, you may need to rethink their accommodation because you could be liable in the case of an accident.
If their impairment only impacts their own safety, they can actually sign off as being okay with this, so long as you outline the safety risks for them.
It’s worth noting that if the only possible accommodation results in safety risks to other employees, it can be considered undue hardship.
Making it easy on your employer
Your employer is required to accommodate your illness, but making it easier to do so will ensure there’s no lasting tension.
The simplest way?
Consuming cannabis via edibles or vaporizers is better for your health and will make it easier for your employer to accommodate.
A few drops of CBD oil with your lunch or in a smoothie is a great way to ensure you aren’t disturbing the workplace – and it minimizes the stigma.
Also, if your medication has any effect on you during working hours, you’re required to tell your employer of your prescription.
The best way to ensure nobody is in the wrong is to work together to find a solution that makes sense for everyone.
Whether you’re an employer or an employee, think about the other perspective.
If you’re a user, don’t take advantage of your prescription to work less. Keep putting in the hours and the work, and your boss will have less reason to object to your accommodation.
If you’re an employer, remember that our jobs cause strain on our bodies. Manual labour causes aches and pains, deadlines cause stress…the list goes on. And many Canadians turn to cannabis to relieve those symptoms. So, chances are, your employees are using cannabis to make themselves better at their jobs, not worse.