Where There's Smoke: How Employers Can Navigate Employees' Cannabis Use

According to the most recent statistics from the Canadian Cannabis Survey (CCS), 5% of people surveyed who used cannabis in 2018/2019 reported consuming it at least once a week during work or in the morning before, while 12% said they did so at least once a month.

This information, and more like it, can help employers understand social trends regarding cannabis when meeting their duty to accommodate, which applies to both medical and dependant users. Tribunals and courts also provide valuable insight into the obligations of both employers and employees regarding the duty, as seen in three recent decisions.

This article highlights key data from the CCS and the reasoning behind the three decisions, which include allowing a professional to continue consuming and working because of a diagnosed dependency, placing limits on what is an acceptable prescription, and determining what constitutes uncooperative behaviour by an employee failing to disclose his consumption at the time of hire. It will also outline what employers can add or take away from their drug policies to ensure they remain fair for recreational, dependant and medical consumers.

Accommodating a professional with cannabis use disorder

Many employment and labour disputes involving cannabis deal with safety-sensitive work environments and impairment, so a decision dealing without either is unusual.

Situation

In Law Society of Ontario v. Dick,1 the Law Society Tribunal was asked to decide on an interlocutory suspension order for a junior lawyer suspected of unfitness. Mr. Dick had threatened Law Society staff verbally and in writing including with the invocation of witchcraft, curses or hexes. This behaviour posed a significant risk of harm to the public interest and the tribunal was convened to decide on whether Mr. Dick should be suspended while he awaited his capacity hearing or whether less severe action should be taken.

Central to the matter was a psychiatrist's evaluation finding that he suffered from cannabis use disorder and a chronic psychotic disorder persisting since law school. The psychiatrist determined that these mental disorders contributed to Mr. Dick's behaviour and unpredictability rendering him incapable of meeting some of his obligations. Free from both disorders, the psychiatrist opined, he may very well function and work as a lawyer. Mr. Dick did not have a prescription for medical cannabis.

Analysis

The Tribunal acknowledged its duty to accommodate Mr. Dick and permitted him to retain his license under certain conditions including direct supervision from another lawyer, undertaking best efforts to be treated for the disorders, and remaining courteous and civil in his communications. Notably...