• Proposed Legislation would create a strict legal framework for controlling the production, distribution, sale, and possession of cannabis across Canada.
• Targeted to become law in July, 2018
• For more information visit the Government of Canada website

Recreational Marijuana Use

• Employees do not have a right to be impaired at work
• Like alcohol consumption, can be controlled through workplace policies

Occupational Health and Safety Act (OHSA)

• Section 25(2)(h) – an employer shall take every precaution reasonable in the circumstances for the protection of a worker (extends to supervisors)
• Not a standard of perfection and not intended to eliminate all risk. It is the obligation to take all reasonable precautions in the circumstances (Glencore Canada Corporation v Sudbury Mine, 2015 CanLII 85298)

Human Rights Code (HRC)

• Section 5 – every person has a right to equal treatment with respect to employment without discrimination because of … disability
• Section 10(1) – provides definition of disability

Duty to Accommodate

• Imposes positive obligation on employers to accommodate employees protected under the HRC to the point of undue hardship
• All parties required to participate and cooperate in the accommodation process
• Does not arise when there is a Bona Fide Occupational Requirement – where the rule or requirement is reasonable and bona fide in the circumstances

Medicinal Marijuana as a Treatment for Disability

• Employees must be able to support medicinal marijuana use with medical documentation
• Employees must be able to perform duties in safe and efficient manner
• Employers should treat medicinal marijuana like other prescription drugs
• Employers must assess each situation individually, balancing obligation to protect workers and duty to accommodate

Notable Cases

• Dean v University of Victoria, 2012 BCHRT 71, 2012 CarswellBC 733
• M obo another v V. Gymnastics Club, 2016 BCHRT 169, CarswellBC 3081
• Brown v Bechtel Canada Co. et al, 2016 BCHRT 170, 2016 CarswellBC 3082

Recommendations

• Update policies
• Policies must take into consideration the protection of a worker and the duty to accommodate, which requires employers to assess each situation on its own set of facts
• Define terms such as impairment, under the influence and safety sensitive
• Address recreational consumption of drugs and alcohol during working hours, during breaks and work social functions and expectations in relation to same
• Address consequences of policy violations

This summary is for information only and should not be construed as legal advice on any specific fact situation. Should you require legal advice, please contact a lawyer.