Ontario Human Rights Commission releases updated policy before pot legalization
"Accommodation does not necessarily require employers to permit cannabis impairment on the job," its updated policy guidance states
TORONTO—Employers are required to do what they can to accommodate medical marijuana users as well as those addicted to pot but that doesn’t give employees carte blanche to show up at work stoned, Ontario’s Human Rights Commission said on Thursday.
In its updated policy guidance ahead of next week’s legalization of recreational weed, the commission says employers can expect workers to be sober at work, particularly in safety-sensitive jobs.
“Accommodation does not necessarily require employers to permit cannabis impairment on the job,” the document states. “The duty to accommodate ends if the person cannot ultimately perform the essential duties of the job after accommodation has been tried and exhausted, or if undue hardship would result.”
Ultimately, the commission said, the looming change in the law has no impact when it comes to human rights.
“The legalization of cannabis is a new reality in Ontario,” Renu Mandhane, the province’s chief commissioner, said in a release. “But while cannabis laws are changing, this policy statement reminds us that human rights protections for people with disabilities or addictions are the same.”
As is currently the case involving alcohol or other drugs, the rights code protects people with disabilities who use cannabis for a medical purpose from harassment and other discriminatory treatment in employment, housing and service delivery.
However, a provincial ban on smoking tobacco in enclosed spaces at work applies equally to smoking or vaping marijuana—whether medical or recreational.
Still, employers must allow workers who smoke or vape cannabis for medical purposes related to a disability to take breaks so they can go outside to spaces where smoking is allowed, the commission’s policy states. Employees can also use edible cannabis for a medical purpose at work but must be able to do their jobs properly, the policy says. A doctor’s note might be required.
“Employers can require employees to be free from recreational cannabis impairment at work,” the commission says. “Impairment at work from cannabis use related to a disability may also be prohibited if it interferes with health and safety or performance of essential job duties.”
At the same time, the code also protects people with disabilities who may be adversely affected by cannabis smoke or vapour.
While drug testing might be appropriate for certain positions, the commission warns the tests must be designed to prevent discrimination against people who use cannabis for a medical purpose related to a disability or who are addicts.
When it comes to rental and condo units, the commission notes that people can as a rule smoke, vape or consume edible cannabis at home—whether inside or on their balconies. The exception is where laws or rules currently ban tobacco smoking or vaping—such as in common areas—for public health reasons.
“Smoke or vapour from recreational or medical cannabis might negatively affect other building residents, including people with chemical sensitivities and other disabilities,” the document says. “Housing providers have a legal duty to look for solutions.”
Additionally, a landlord or condo board has the authority to ban pot smoking in residential units, balconies and terraces—unless it involves someone with a disability. In those cases, the duty to accommodate is triggered.
What is likely to run afoul of the code is banning pot smoking in places where people are allowed to smoke cigarettes, the commission says.