Following the legalization of cannabis on October 17, 2018, employers across the country have rolled out policies on drug use. Members should know that legalization of cannabis should not change anything in the workplace.
Below you will find some helpful guidelines about how cannabis issues may arise in the workplace and how best to address them.
The Duty to Accommodate criteria has not changed with the legalization of cannabis, nor have the protections with regards to disclosure of medical information.
Employers must provide appropriate accommodations that respect the dignity and privacy interests of people with disabilities, and the focus should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.
Employees who are prescribed medical cannabis must be accommodated in the same way as employees who are prescribed any other medication. While every case must be assessed individually, members are encouraged to contact the union before informing the employer of their prescription for medical cannabis.
Generally, the employer does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought. The employer’s right to information remains restricted. If members have concerns about the medical information that is being requested, they are encouraged to contact the union before they provide it.
Cannabis is currently not covered by any PSAC members under the Public Service Health Care Plan (PSHCP). We are beginning negotiations for the PSHCP in the very near future and will propose to include coverage for cannabis. We will be posting updates on PSHCP negotiations as they progress.
Impairment and Drug Testing
Regardless of substance (alcohol, opioid, cannabis, sleep deprivation, etc), an employee cannot be impaired at work.
Drug or alcohol testing is only permissible in very rare situations, and cannot be done randomly or without cause. The testing itself is unreliable and no test can presently measure cannabis impairment. Positive drug or alcohol testing does not automatically indicate that a person is impaired but just that the drug is in their system.
Testing for drug or alcohol is a form of medical testing so raises all the privacy and human rights considerations because it is very invasive and requires the collection of bio-samples. If your employer is suggesting drug testing, please contact your union immediately.
Legalization of cannabis does not give employees the right to be impaired at work. Employers can develop workplace standards, including policies on substance use or impairment at work. Employees in certain positions that raise additional health and safety concerns in certain regulated industries may also have policies for off-duty consumption of drugs or alcohol.
However, employers should only be concerned with how the use of drugs is impacting an employee’s performance, their workplace behaviour, or the safety of the workplace. If an employee’s behaviour off work hours does not affect the workplace, employers are not entitled to ask about it and the employee is not obligated to discuss it. You have a right to privacy, and the employer cannot unjustifiably infringe on it. If you are being disciplined for off-duty conduct, please contact your union immediately.