Cultural views toward marijuana have changed drastically over the past decade. Cannabis use now attracts far less stigma, especially when prescribed for medicinal purposes. The law is constantly evolving to reflect these changing societal attitudes.
A recent labour decision in Ontario is a good example. Ornge Air v Office and Professional Employees International Union was a union challenge to Ornge’s “zero-tolerance” drug policy. The union, on behalf of an Aircraft Maintenance Engineer by the name of Eric DeGeit, successfully challenged the policy on the basis that it was unreasonable and discriminated against employees who used prescribed cannabis to treat medical conditions.
Although the decision ultimately ruled in favour of the employee, there is not a yes-or-no answer to the question of whether employers can impose policies regarding cannabis use outside work. We break down the decision below in order to provide further guidance on what employers can and cannot do when it comes to creating and implementing such policies.
Was The Policy Reasonable?
The main question a decision-maker will ask is whether the policy is reasonable in the circumstances. What is “reasonable” will be very different depending on the setting, for example, in an office environment versus a construction site. In addition to assessing whether the policy is a reasonable requirement for the job duties involved, a decision-maker will also ask whether the policy has been clearly communicated to all employees, whether employees have been informed of the consequences for non-compliance, and whether the policy is consistently enforced.
In this case, the zero-tolerance drug policy was held to be unreasonable because Ornge employees — even those in safety sensitive positions — could limit or stop using products containing THC for a certain period of time before reporting for shifts, thereby ensuring that they were fit for duty and could safely perform work. The policy was unreasonable because it failed to consider the use of cannabis as a prescribed medication, which could be used outside business hours similar to any other medication or legal substance.
Was The Policy Discriminatory?
The second question a decision-maker will ask is whether the policy is discriminatory and therefore in violation of human rights legislation. A policy will be considered discriminatory if it negatively impacts an employee based on a “protected” ground. In cases involving medical cannabis use, the protected ground is the underlying medical condition.
However, there are exceptions that employers may rely upon.
Even if a policy has the effect of discriminating against an employee based on their medical condition, the employer will not be guilty of discrimination if the policy is necessary for a “bona fide occupational requirement”. This is similar to the question of whether the policy is reasonable. Compliance with the policy must be reasonably necessary in order for the employee to safely perform their duties.
The second exception relates to accommodation. If the employer can prove that they took reasonable steps to accommodate the employee up to the point of undue hardship, they will not be guilty of discrimination. As long as employers make reasonable efforts, they may not be required to fully accommodate the individual if doing so would be impossible or would impose significant disruption or expense to the business (you can read more about the duty to accommodate on our Human Rights page).
In this case, the arbitrator found that Ornge could not a justify a blanket ban on all drug use as being necessary for a bone fide occupational requirement, for the same reasons described above – employees could take limited prescribed amounts outside of work and still be able to report fit for duty.
The arbitrator also ruled that Ornge failed to accommodate Mr. DeGeit to the point of undue hardship. Ornge had been presented with a medication plan that would have allowed Mr. DeGeit to continue taking limited prescribed amounts of cannabis outside work hours and still report fit for duty. Therefore, the policy discriminated against him based on his medical condition.
This decision does not mean that employees can use mind-altering substances before reporting for shifts. It also does not mean employers are prohibited from enforcing drug and alcohol policies in order to ensure a safe working environment.
Rather, the main lesson from this decision is that substance use policies must be carefully crafted to ensure they are not over-reaching and can be justified in light of the requirements of the job. If employees must rely on prescribed substances to treat a medical condition, employers must also take care to ensure they make all reasonable efforts to accommodate their employees.