Marijuana Legalization and the Workplace

Impending legalization of recreational marijuana use has many employers wondering about impairment, poor productivity and attendance, and unsafe conditions in their work environment.

Drug Testing in the Workplace

The Ontario Human Rights Commission recognizes that workplace safety is a legitimate goal for employers. However, workplace drug testing should only be adopted if there is a bona fide occupational requirement for doing so. This means that the testing practice is:

  • adopted for reasons logically connected to the job’s performance
  • adopted in good faith to achieve a legitimate work-related purpose
  • reasonably necessary to achieve this purpose

Employers must therefore be able to demonstrate that it is not possible to accommodate an employee’s recreational or medicinal marijuana use without incurring undue hardship on their business.

Marijuana Impairment

When it comes to drug and alcohol testing, tests should be done to measure current impairment, not act as a deterrent.

One of the difficulties facing businesses who may have legitimate requirements for their employees to undergo drug testing is that there is currently no clear consensus on what constitutes marijuana impairment. Unlike with breathalyzers for alcohol, there are no precise tests for measuring current levels of impairment from marijuana use.

Urine tests can pick up use that happened weeks earlier and blood tests only reveal use in the past few hours. Neither of these tests can quickly measure current levels of impairment.

Discrimination, Human Rights and the Duty to Accommodate

With the legalization of recreational marijuana, employers will have to balance competing obligations to accommodate medical marijuana use and cannabis addiction, and to ensure the health and safety of all in their workplaces.

As with any other prescribed medication or addiction (which is considered a disability under human rights law) employers have a duty to accommodate the needs of their employees to the point of undue hardship.

Accommodation policies can largely mirror existing policies for prescription medications that can have an impairment effect. Similarly, rules regarding the recreational use of marijuana in the workplace, during working hours and outside the workplace can mirror your policies on alcohol consumption.

Some options for accommodating an employee’s medical marijuana requirements include:

  • moving employee out of safety-sensitive positions
  • providing more frequent breaks
  • offering alternative scheduling or duties

A prescription for medical marijuana does not entitle an employee to be impaired at work or compromise the health and safety of themselves or others. Nor does is override smoke-free laws or allow for unexplained absences or late arrivals.

Policies and Procedures

Employers may have to review and update their workplace policies and procedures to address the legalization of recreational marijuana use.

The good news is, the legalization of recreational marijuana isn’t likely to require you to make radical changes to your existing workplace policies and procedures. Fulfilling your human rights obligations while keeping your workplace safe and productive should not pose a significant challenge to most employers.

You will no longer be able to include cannabis use as an illegal off-duty activity and you likely will no longer be able to restrict employees’ possession of it in the workplace. However, employers will be able to take progressive disciplinary actions for an employee’s failure to follow workplace policies.

Impairment at Work

Employees do not have the right to be impaired at work. You can still expect workers to show up sober and ready to work.

Employers will be able to set rules regarding marijuana use similar to those they may already have regarding alcohol consumption. Furthermore, employers can prohibit the use of marijuana at work and during working hours.

KCY at LAW can Help

With all these changes and so much uncertainty, employers may be unsure of their rights when it comes to maintaining a safe and drug-free work environment. Due to the conflicting nature of existing case law, employers should consider having their policies reviewed by an experienced employment lawyer. To book your consultation with KCY at LAW, call 905-639-0999

Expanded Liability for Workplace Harassment

Whereas traditionally, harassment and discrimination complaints have been directed at employers or colleagues, a recent decision from the Supreme Court of Canada has many employers worried about increased liability for workplace harassment between parties without a direct employment relationship.

British Columbia Human Rights Tribunal v. Schrenk, 2017

Mohammadreza Sheikzadeh-Mashgoul was a civil engineer and was assigned by his engineering firm to consult on a road improvement construction project. Part of Mr. Sheikzadeh-Mashgoul’s job was to supervise workers on the site. As is often the case on construction sites, these workers had a different employer than Mr. Sheikzadeh-Mashgoul.

One of these workers, Edward Schrenk, repeatedly made discriminatory and harassing insults about Mr. Sheikzadeh-Mashgoul’s religion, birthplace and sexual orientation. Having enough of Mr. Schrenk’s racist and homophobic slurs, Mr. Sheikzadeh-Mashgoul brought a human rights complaint against Mr. Schrenk and Mr. Schrenk’s employer.

Mr. Schrenk and his employer argued that Mr. Sheikzadeh-Mashgoul couldn’t bring a complaint against them since they were neither Mr. Sheikzadeh-Mashgoul’s colleague nor employer. They argued that the British Columbia Human Rights Tribunal (BCHRT) did not have jurisdiction over the complaint since Mr. Sheikzadeh-Mashgoul and Mr. Schrenk had different employers.

The Tribunal ruled that it did have jurisdiction, a decision that was overturned at the BC Court of Appeal. However, the Supreme Court of Canada has agreed with the BCHRT that this matter between Mr. Sheikzadeh-Mashgoul and Mr. Schrenk was within the Tribunal’s jurisdiction. The matter now sits again with the BCHRT.

The Supreme Court’s Decision

To support its decision, the Supreme Court of Canada cited the BC Human Rights Commissions prohibition on discrimination in the employment context. The court argued that the BC Human Rights Code protects workers from discrimination and harassment in employment regardless of the identity of the perpetrator.

Despite the lack of direct employment relationship, the Supreme Court ruled that Mr. Sheikzadeh-Mashgoul’s complaint was valid.
According to Justice Abella, this responds “to the realities of modern workplaces, many of which consist of diverse organizational structures which may have different employers and complex work relationships… [and] recognizes that preventing employment discrimination is a shared responsibility among those who share a workplace.”

Similarly, Justice Rowe agreed that the Human Rights Code “supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability rather than as a relationship needing unilateral protection.”

What this Means for Employers

The Supreme Court’s decision has expanded scope of Human Rights protection to non-traditional workplace relationships, including parties who have no direct employment relationship. This allows individuals to proceed with employment discrimination complaints against individuals and organizations with whom they have no formal employment relationship. Employers may now be liable for human rights claims from people who are not even their employees.

Accordingly, an individual may bring a human rights complaint if the:

  • perpetrator was important to the complainant’s workplace
  • discrimination happened in the complainant’s workplace
  • complainant’s work environment or performance was negatively affected by the perpetrator’s action.

Outside of BC, the impact of the Supreme Court’s decision depends on the wording in your province’s human rights legislation. Ontario’s Human Rights Code is similar to that of BC which suggests Ontario employers will also face this new liability for harassment and discrimination in the workplace.

You should always consult with an employment lawyer if you are facing a discrimination or harassment claim.

If you have questions regarding the impact of this Supreme Court decision on your business, call KCY at LAW and book your consultation today! 905-639-0999

Employees Not Covered By ESA

Seeing as this blog is situated on an employment law firm’s website, it’s made ample mention of the Employment Standards Act (ESA) over the years.

The ESA is one of Ontario’s most significant pieces of employment legislation. The Act sets out employees’ rights and employers’ responsibilities in the workplace. It also sets standards for things like minimum wage and overtime pay.

You don’t have to be an Ontario resident or even a Canadian citizen or permanent resident to be entitled to all of the ESA’s protections, rules and regulations. You are even entitled to all of the ESA’s protections if you don’t have a valid permit to work in Canada. Indeed, most Ontario workers are covered by the ESA’s legislation.

Employees Not Covered by ESA in Canada

Employees Not Covered by ESA in Canada - KCY at LAWHowever, there are still dozens of industries whose workers do not benefit from the rules and regulations outlined in the ESA. So while servers, receptionists and cleaners are all covered by the ESA, the following job positions, for example, are not:

  • Pilots
  • Babysitters
  • Lawyers
  • Federal government workers
  • Bank tellers
  • Long haul truck drivers

Instead, employees in the above jobs may be regulated by other legislation such as the Ontario Labour Relations Act or the Canada Labour Code.

While the ESA applies to most Ontario workplaces, according to the Ministry of Labour, the ESA does not apply to:

Employees in Sectors that Fall Under Federal Jurisdiction

Such sectors include airlines, banks, post offices, radio and television stations and the federal civil service. Employees in these sectors are covered by laws made by the Canadian government, such as the Canada Labour Code, which apply all across Canada. The Canada Labour Code also applies if you hold political, judicial, religious or elected trade union office.

Students in Work Experience Programs

This applies to you if you are working under a program that has been approved by a university or college of applied arts and technology or if you are a secondary school student performing work under a program authorized by your school board.

Individuals Doing Community Participation Under the Ontario Works Act of 1997

Individuals on social assistance and doing community participation under the Ontario Works Act are covered by the Ontario Works Act with respect to their workplace rights and obligations and not the ESA.

Employees Not Covered by ESA - Employment Lawyer Burlington - KCY at LAW

Police Officers

Police officers’ employment rights are detailed in the Police Services Act.

Self-employed and Independent Contractors

Employers have occasionally tried to claim that their workers are self-employed and that the ESA therefore doesn’t apply. But this is often inaccurate. Even if you signed a contract saying that you are an ‘independent contractor’ you may still be entitled to ESA protections.

ESA Entitlements Legal Experts

The best way to verify your ESA entitlements is to speak with an experienced employment lawyer such as Kathy Chittley-Young here at KCY at LAW. (905) 639-0999 or fill out a form online here.