With the recent legalization of cannabis in Canada, including the upcoming legalization of edible cannabis products, cannabis users have more and more questions about the use of weed in the workplace including potentially in relation to wrongful dismissal, constructive dismissal and human rights law. Below we have addressed some of these key concerns in an effort to shed light on employee rights in this context.
Can I Use Cannabis at Work?
Generally, cannabis can be smoked wherever tobacco can be smoked and is subject to the same restrictions with respect to the location of use. This means that smoking cannabis is generally prohibited in enclosed public places, including enclosed workplaces. This means that if you work in an enclosed space, you likely cannot smoke cannabis inside at work.
With respect to smoking cannabis in open air workplaces, though, the answer is less clear. While smoking cannabis in open air workplaces is not explicitly prohibited by legislation, an employer may have a duty to address such open-air smoking pursuant to Occupational Health and Safety Act, especially where employees affected are working in safety-sensitive positions.
Therefore, if you use cannabis and you work in a safety-sensitive role (or those around you work in such a role) your employer may be able to curtail your use of cannabis, despite the fact that you are using in an open-air workspace.
It is unclear at this time how the regulatory focus may shift to address the use of edible cannabis products in the workplace given that, by definition, these products do not have a direct impact (through smoke) on non-using employees in the workplace. We will provide an update to this article following the legalization of edible cannabis products in Canada.
What If I Am Addicted To Marijuana Or Require It For My Disability?
The protections outlined in the Human Rights Code (the “Code”) in Ontario may be engaged where an employee requires the use of cannabis (including potentially edible cannabis products, once such products become legalized) for a legitimate medical condition (as supported by medical documentation) or even potentially where the employee’s use of cannabis amounts to a disability (i.e. the employee has a legitimate addiction to cannabis). In this context, an employer is required to work with the employee to make reasonable efforts to accommodate the employee’s use of cannabis in the workplace.
If an employee is discriminated against (e.g. terminated, disciplined, refused work etc.) due (even only in part) to their use of medically prescribed cannabis or because of their addiction to cannabis, the employee may be entitled to file a human rights complaint. Human rights claims, including those in relation to constructive or unjust dismissal and involving the use of cannabis, can be particularly complex and so employees should reach out to an employment lawyer to learn about their rights before pursuing any claim against their employer/former employer.
Are Gummy Bears Coming?
For those that are interested, gummy bears are not on the list to be approved as they may be appealing to children. We are certain however that industry will meet consumer needs in other ways in this regard.
It is important that employees make themselves aware of their rights with respect to the use of cannabis at work so that they can enforce such rights and avoid any potential disciplinary actions against them.
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