Full Discloser?

In the changing landscape of cannabis legalization in Canada, what are employees’ rights to disclose or not to disclose medical cannabis use at work?

By Henria Stephens, student-at-law, Cannabis Law, Barristers & Solicitors

May 31, 2021

Photo by Josh Olalde on Unsplash

Legalization brought hope and legitimacy to a long-maligned plant. Our new laws define how we can legally engage with this wonder flower. Finally, some clarity, though not surprisingly there also continues to be confusion, mistrust and outdated unscientific beliefs. You may be flabbergasted to learn that post-legalization there are more prohibitions than existed during prohibition. The policing of cannabis is nothing new. But the past decades of systemic criminality and sanctions cannot be forgotten in a year or two, or even three, especially when the stain of stigma remains.

While this blog post is not a substitute for proper legal advice, which you should find before making any major decision, I intend it to be a guide to anyone who would like to know about the legalities of using and disclosing medical cannabis use at work -- what Acts, policies and cases to look to for guidance, and how to navigate this grey area in cannabis law.

(This blog post will be dealing with medical cannabis. Medical cannabis is subject to different rules than recreational or adult-use cannabis, in part because the production and sale of medical cannabis is regulated exclusively by the federal government. Recreational/adult-use cannabis is not covered under any workplace policy unless there is an addiction issue.)

Here are the topics I will cover:

• The Medical Cannabis Regime in Canada
• What does the law say for an Employer’s  substance use/abuse policy and obligations?
• Does This Work in Practice?
• Workplace Enforcement in Ontario
• Workplace Accommodation
• Should an Employee Disclose their Medical Cannabis Use?
• Maybe Forklift Operator Isn’t the Profession for You?
• Mandatory Drug Testing
• Pre-employment Testing
• Near Misses
• Where to Consume My Medicine?
• Moving Forward

The Medical Cannabis Regime in Canada

Explaining the law for the use of medical cannabis at work is not a straightforward task. Directives come from the federal government that are left to individual provinces to implement and enforce with the help of employers, unions, lawyers and occupational health and safety committees. Obviously, messaging is confusing.

Under Canada’s Cannabis Act, the Cannabis Regulations (formerly the Access to Cannabis for Medical Purposes Regulations or ACMPR) regulate the production and distribution of medical cannabis at the federal level; there is no provincial/territorial distribution of medical cannabis. Pursuant to Part 14 of the Cannabis Regulations, a person who needs medical cannabis to alleviate or treat a particular symptom or symptoms can apply to Health Canada and obtain a “Registration Certificate” after they have submitted their doctor’s “Medical Document” which is like a prescription for medical cannabis.

By having to obtain “permission” from Health Canada to consume cannabis for medical purposes, there is a level of government oversight and administration that is not required of more traditional pharmaceutical prescriptions, opiates included, easily obtained from a walk-in-clinic or family doctor, that are more powerful and intoxicating drugs than cannabis. What is this messaging from our civic leaders? Are natural plants, “drugs” without a DIN (drug information number), more dangerous than prescription drugs that have fuelled record overdoses and our opioid crises? The mandatory three-year review of the Cannabis Act begins in October 2021, and the government committee needs to address this irony. Medical clients should not have to obtain government permission in addition to a doctor’s prescription to purchase cannabis, any more than people with diabetes should for insulin.

What does the law say for an Employer’s Substance use/abuse Policy and Obligations?

The Canadian Centre for Occupational Health & Safety (CCOHS), is a national advisory and resource institute enacted by Parliament that studies and advances occupational health and safety in the workplace. Despite not having any legal enforceability, it guides and governs “the interests and concerns of workers, trade unions, employers, federal, provincial and territorial authorities, professional and scientific communities and the general public.”1

The CCOHS acknowledges that, “While it is not appropriate for the employer to ask for specific medical findings and diagnoses from the employee or their health professional, employees may wish to consider informing their employer if a medical procedure or treatment may impact their ability to perform their job safely. If the organization has a substance use/abuse policy, it may be necessary to disclose the use of marijuana for medical purposes.” [emphasis added]

Confusing the use of cannabis for medical purposes with an employer’s substance use/abuse policy is not helpful; cannabis as medicine is not the same as cannabis addiction. Nevertheless, both case law and policy guides have indicated that employers have a right to terminate an employee who, given the opportunity to disclose their addiction, choses not to, and is then found to be using “drugs" on the job.

In French v. Selkin Logging,2 the British Columbia Human Rights Tribunal upheld the dismissal of an employee who, having been made aware of the zero-tolerance drug policy, chose not to disclose his cannabis use related to a disability. Aggravating this matter was the fact that the employee did not register his cannabis use through official medical authorization channels. So even though the employer could not prove that the employee’s cannabis use negatively impacted his work - it did not - the fact that he did not disclose his disability or seek assistance was critical to upholding his dismissal. Key to the tribunal’s decision was the fact that the employer had a clear drug and alcohol policy in place which the employee knew about, and breached.

The Policy statement on Cannabis and the Human Rights Code set out by the Ontario Human Rights Commission seems to affirm French v. Selkin Logging, stating “an organization may not be expected to accommodate a disability-related need if the person does not ultimately participate in the accommodation process.”

Employers must consider if there is a risk to the individual’s safety or the safety of others due to the side effects from any prescribed or over-the-counter medication. The guidelines are not drug specific, and challenge employers to focus on job performance, cognitive ability, judgment and side effects from prescribed medication or treatment plans.

Does This Work in Practice?

These contemplations make total sense in the context of workplace safety and performance, but how often does this forensic evaluation of an employee’s ability and judgment actually take place? Have employers always considered these risks? Unless the premise is that employers can now connect to their staff in a more holistic way, the medication one takes to treat any type of health complaint should and must remain private, save for the drugs and treatments that impair judgment, performance or cognitive function - the alternative risks discrimination against medical cannabis users.

That statement might seem extreme, but from my brief experience as an articling student, I have seen several (unreported) cases of employees disclosing their medical cannabis use and subsequently facing the threat of sanction, and in one case, losing their job.

Photo by Charles Deluvio on Unsplash

Workplace Enforcement in Ontario

The recommendations of the CCOHS are just that, recommendations without “teeth”. Enforcement of the CCHOS recommendations in Ontario are administered by the provincial  Ministry of Labour based on the following policy considerations: the definition of impairment, substance use and abuse; who is covered under the policy; what an employee’s confidentiality rights are; employee education programs related to impairment and substance use/abuse; training on identifying impairment; assistance for substance users; statements on when drug or alcohol testing can occur; and, disciplinary actions.

The Ministry of Labour has created an information page on their website with a list of resources on impairment and workplace health and safety which focuses almost exclusively on cannabis. Getting through the material is a bit cumbersome. The legal enforcement of occupational health and safety policy is derived from the Occupational Health and Safety Act (“OHSA”), specifically s.66 of the Act that calls for penalties of up to $100,000 and/or up to twelve months imprisonment for every person who fails to abide by the Act.3

What does “failing to abide by the Act” mean? Good question! It is clear from the Act that employers bear the greater onus of enforcement. They must have the OHSA posted and keep their own OHS Policy updated along with a means to enforce the policy. Employers are also required to enact or amend workplace occupational health and safety policy in consultation with health and safety committees and the union when there is one, as well as educate their employees on any changes to these policies. These policies must be reviewed yearly. Employers have the responsibility of enforcing the policy based on federal recommendations and provincial law. Last, employers are encouraged to provide employees with accommodation before resorting to consequences outlined in workplace policy.

Workplace Accommodation

Employers also have a duty to accommodate according to federal and provincial human rights legislation, which includes medical cannabis use and addiction to cannabis. This accommodation should be facilitated as long as there is no “undue hardship” for the employer.

An employer may ask for a “Fit to Work” medical assessment to be conducted. This test establishes whether or not an employee can carry out his/her job requirements based on the determinations of a medical professional. As long as an employee’s human rights are not breached, this assessment is considered to be fair. What is important to remember is that “This duty means that the employer has a responsibility to ensure that all reasonable attempts have been made to modify the job, the job requirements, or the working conditions so that employment can continue in a way that is safe for the employee and co-workers. If requested, the information provided by the medical professional can include suggestions for assisting the employee.”4 The duty to accommodate ends if the employee is unable to fulfill their essential job functions.

Addiction is a disability covered under the Human Rights Code. Any workplace impairment or health and safety policy that has immediate disciplinary effect, especially as it relates to disclosure, may be deemed discriminatory. Accommodation requests should be accepted in good faith.

The Burning Question - Should an Employee Disclose their Medical Cannabis use?

The Ontario Human Rights Code (“OHCR”) protects people who use cannabis for medical purposes related to a disability from discriminatory treatment in employment. According to the OHCR, the onus is on employees to communicate their disability, and for employers to accommodate any related requests in good faith.

At no time can the employer request medical records without the employee’s written consent,5 but employees are expected to disclose their use of any substance that might impair them on the job.

However, if an employee has a medical prescription for cannabis and there is no cannabis related policy at their work and their job does not fall under the zero tolerance list for drugs or safety-sensitive jobs, employees should consider their employer’s attitudes around cannabis before disclosing their use, especially given the current state of the law. It is true that there is recourse if employers do not respond positively, but that can take quite a long time, sometimes several years.

Obviously, this is not an ideal situation. One must have a sense of the workplace culture, because disclosure to an unsupportive employer, where there is a lack of clarity in terms of rights and responsibilities for both employees and employers could necessitate investing in legal advice, being unemployed, or create a toxic work environment. When disclosing, employees make themselves quite vulnerable to stigma, along with job insecurity.

Alternatively, employees can continue to say nothing. The risk is if the employer discovers their medical cannabis use, they may have grounds to pursue an action against them for failing to disclose, especially if the job is considered safety-sensitive.

In the case of Aitchison v. L&L Painting,6 for example, the Human Rights Tribunal of Ontario upheld a termination decision: the employee used medical marijuana while working as a high-rise painter but did not disclose his prescription to his employer or seek accommodation. Aggravating factors were a known zero-tolerance drug policy.

Just as the policy would need to be specific to medications and other substances that impair, it will also need to be specific to those employees who actually work in safety sensitive positions. It may be that the employer works in a safety sensitive industry (such as mining), but that does not mean every single employee in that workplace is actually working in a safety sensitive position.7

Maybe Forklift Operator isn’t the Profession for you?

There are certain jobs that have zero-tolerance sanctions for the presence of drugs. Those are commercial vehicle drivers that hold Class A through to F driver’s licences, road-building machine drivers, and vehicle drivers who require a Commercial Vehicle Operator’s Registration (CVOR) (e.g., trucks with a registered or actual weight greater than 4,500 kg or buses with a designed seating capacity of more than 10 passengers).

Mandatory Drug Testing?

There are very narrowly defined times in which an employer is entitled to request a bodily fluid sample. These conditions are strictly related to safety-sensitive work, and where employers can justify the need for testing as part of health and safety policy. As a matter of course, the employer must prove that there is a bona fide occupational requirement (BFOR) that necessitates its application. They must ask, ‘what are the inherent risk and consequential dangers that would justify testing?’ ‘Is there rampant drug and alcohol abuse on the work site?’ Without a very significant safety concern, the Supreme Court of Canada has held that “an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace.”8 In other words, employers should only use drug testing when a “serious, pervasive problem” is clearly demonstrable.

Currently there is only random testing for alcohol permitted in very specific safety sensitive circumstances. The Canada Human Rights Commission defines a safety sensitive position as one where the “employee has a direct role, with limited supervision, in a workplace operation where impaired performance could result in a catastrophic incident affecting the health and safety of the employee.”

Pre-employment Testing

Interestingly, pre-employment drug testing is allowed in certain safety sensitive fields, though testing positive cannot be held against a prospective employee. That means, if a potential employer requests a urine sample as part of the job application, you can give a sample, or not, and if the sample is positive for a banned substance, that cannot be a grounds for not hiring you as per Ontario Human Rights legislation. Having said that, personally, I would not feel comfortable relying on that fact and would hesitate to provide a sample.

Near Misses

“Drug testing may be permissible 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. Testing in these situations may be permissible only where employees are doing safety-sensitive work, the testing is part of a larger assessment of drug addiction, and the person with the addiction is accommodated to the point of undue hardship, among other criteria.”9

Where to Consume my Medicine?

Generally speaking, the rules around where it is legal to smoke are the same as cigarettes, which is another irony (cigarettes are carcinogens, cannabis is medicine). Employers have the right to restrict cannabis vaping and smoking in enclosed and non-enclosed workplaces in the same way tobacco smoking is prohibited.

Moving Forward

Even though Canada has legalized cannabis, it is still difficult to disclose medical cannabis use with complete confidence. Instead of guaranteeing continued employment, the law is reactionary and puts the onus on employees to pursue recompense if their disclosure is met with opposition, with a long wait for a hearing (wait times are now 2 to 3 years at the Ontario Human Rights Commission) and with no guarantee of success. This is cold comfort at a time of economic uncertainty, and as stated at the beginning, in need of serious review and reform to help employees, who are in need of relief from the medicinal benefits of cannabis, stay employed.

Endnotes

1. In Canadian Centre for Occupational Health and Safety Act - https://laws-lois.justice.gc.ca/eng/acts/C-13/page-1.html#h-61681 Accessed 03/23/2021

2. French v. Selkin Logging, 2015 BCHRT 101.

3. There are a few concessions: subject to subsection 23(1) - enforcement of the Act by the employer, 27(1) - duty of the supervisor to enforce the Act; and clause 25(1)(b)(c)(d).

4. “OSH Answers Fact Sheets” accessed from https://www.ccohs.ca/oshanswers/psychosocial/fit_to_work.html

5. See subsection 63(2) of the OHSA.

6. Aitchison v. L&L Painting, 2018 HRTO 238.

7. https://www.hrreporter.com/employment-law/news/disclosure-of-medications-in-safety-sensitive-workplace/316014 

8. Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34.

9. “Drug and Alcohol Testing” in http://www.ohrc.on.ca/en/drug-and-alcohol-testing-%E2%80%93-frequently-asked-questions