Lexpert US Guides

48 | LEXPERT • June 2019 | www.lexpert.ca/usguide specific workplace, says Frazer. "If there are unionized employees, this discussion needs to take place with the union and union representatives and how this fits into the collective agreement." Most often, the policy will take into consideration both alcohol and cannabis, says Bush. There needs to be a statement that the employer is responsible for main- taining a safe and productive work envi- ronment for all employees. At the same time, Bush says, employees are required to perform their job safely and responsi- bly, and be "fit to work" when conduct- ing work on behalf of the employer," Bush says. In addition, employees must conduct themselves in a professional manner and not engage in behavior that would have a negative impact on the employer's brand or reputation. So, for example, the policy should also include off-site use of canna- bis, she says, such as whether it can be used while at employer-sponsored events. Fur- ther, given that the law is evolving – the second wave of legalization, scheduled for 2019 will include, for example, cannabis edibles – the policy will need to be updated. "Right now we're using analogies to alcohol, that's functionally what we're do- ing," says Frazer. "But cannabis is a differ- ent regime; it's going to take several years to unfold and to have enough law that advisors can actually give reasonable cer- tainty as to what's going to occur." person an addict, and also doesn't mean that the employer or prospective employer is perceiving the employee is an addict. So it is quite fine for employers to express pref- erences against the use of that substance and it's not a human rights violation," he says. "Now in a unionized workforce, there is a complication though; and that's because not only must the employer not violate human rights legislation, it must also implement rules that can stand up to scrutiny on the basis of reasonableness." Where it gets interesting, he says, is where employers have attempted to cre- ate some rules around the use of cannabis when the employee is not at work. For example, "some police forces, in diverse parts of the country, have instituted re- strictions ranging from officers not being able to use cannabis within a certain time- frame of coming on duty, to a complete ban on the right to use cannabis by offi- cers who qualify to use firearms." ese rules, he says, are bound to be tested, at least in the case of police by arbitrators or human rights tribunals. Although the line can sometimes be difficult to ascertain – and employers must show caution in terms of deciding whether or not an employee has a cannabis addiction – increasingly, Kathryn Bush is fielding questions from employers regard- ing benefit plans and cannabis in this new regime. "There is significant uncertainty as to the use and regulation of cannabis in the workplace," says Bush, a partner in the Pension, Benefits and Executive Com- pensation Group with Blake, Cassels & Graydon LLP. "It will be important for employers to see how this develops in the next couple of years." Even so, there is some case law in Cana- da surrounding benefits and medical can- nabis of which employers must be aware, says Bush. "Benefit plans will not provide for recreational cannabis coverage, but even where cannabis has been prescribed there is case law, for example, Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31, that benefit plans do not have to provide coverage for medical marijuana and is not discrimina- tory in Nova Scotia under the province's human rights legislation." In Ontario, says Shamie, the Ontario Human Rights Tribunal in Rivard v. Es- sex (County), 2018 HRTO 1535, found the decision to deny coverage for medicinal cannabis under an employer's benefit plan was not discriminatory under the Ontario Human Rights Code when the denial is unrelated to an applicant's disability or an- other protected ground." Another workplace and cannabis issue is determining how to measure impairment, says Nieuwland. A recent court decision in Newfoundland, he says, although it dealt with medically authorized marijuana use in a safety-sensitive workplace, has impli- cations for employers seeking guidance as they create policies surrounding the use of recreational cannabis in their workplaces. "In that case, the International Broth- erhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Con- struction Employers' Association Inc., 2019 NLSC 48, the union challenged the com- pany's refusal to hire a person in a safety- sensitive position because he used medi- cal cannabis. The company cited the fact that current cannabis testing technology could only show that a person used canna- bis in the recent past, but could not tell if an employee was impaired by cannabis at work. Given this limitation, the employer concluded it could not hire this person because there was no way to know if he could work safely. The court agreed with the company." Nieuwland says this decision reflects good policy. "If you can't measure impair- ment, an employer can't manage the risk. Until cannabis testing technology is able to measure impairment at work, like an alcohol breathalyzer, employers in Canada appear to have the right to refuse to employ cannabis users in safety-sensitive roles." e bottom line for US counsel in understanding the implications for rec- reational cannabis and its use in the Ca- nadian workplace is that it's unclear. To minimize risks, employers need to ensure they review and update their employment policies so it's clearly delineated in the em- ployee handbook what is and what is not tolerated in regard to cannabis use, in their Labor / Employment "We're all in a bit of the new world in terms of regulating cannabis for non-me- dicinal purposes in the workplace. Now that recreational cannabis is legal, it's clear to see it's a material and meaningful social and workplace issue." Mitch Frazer, senior partner and chair of the Pensions and Employment Practice at Torys LLP

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