Law Times

Page 10 May 28, 2018 • Law TiMes www.lawtimesnews.com Pot legalization to impact employers BY DALE SMITH For Law Times W ith legalized rec- reational cannabis on the way in Can- ada, many employ- ers are wondering how this will affect workplace drug policies. Employment lawyers have said that recent Supreme Court of Canada decisions on drug testing provide important guid- ance and can be used to inform their clients when they are devel- oping policies. In the SCC's decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the major- ity of justices on the court ruled that the employee of a mining company's cocaine addiction was not the reason for his termi- nation. Instead, they found the em- ployee's termination was be- cause of a breach of policy that required employees to disclose any dependence or addiction issues before any drug-related incident occurred and that the Alberta Human Rights Tribunal had not established that this was a case of workplace disability discrimination. "The legalization of recre- ational cannabis is definitely an area that has been getting a lot of attention, and we're getting a lot of questions asking around this," says Daryl Cukierman, partner with Blake Cassels & Graydon LLP in Toronto. Cukierman says that, from the employer perspective, there is a need to be clear about em- ployer expectations around the use of legalized cannabis, par- ticularly around the relationship between cannabis use and the workplace. He says that while employees' expectations about cannabis use may change, employers still have the responsibility to provide a safe workplace. "Lawyers should be think- ing about drafting workplace policies banning the use of marijuana at work unless it was prescribed by a doctor," says Jeff Dutton of Dutton Employment Law in Toronto, who is also a former prosecutor for the On- tario Ministry of Labour. Dutton says that even when cannabis is fully legalized, em- ployers don't have to put up with employees smoking cannabis at work in all circumstances. However, he says, if an em- ployee has a disability that re- quires a prescription for medi- cal cannabis, the employer has to accommodate that disability up to undue hardship. Dutton says that undue hardship will be triggered more readily in work- places where there are health and safety issues, such as a mine or construction site, compared with office workers. "Even with respect to your typical office worker, and they've been prescribed medical marijuana, an employer doesn't want them coming in stoned per se," says Dutton. Employ- ers should consider following in the footsteps of the Toronto Transit Commission and con- sider drafting a fitness for work policy, he says. Such a policy lays out how employees can use cannabis but can't be "stoned." For sites such as mines, Dut- ton says, employers should not allow any use of marijuana, and if sued, they should go to court in order to claim undue hard- ship. Employers that require drug testing should have a policy that has been drafted by an em- ployment lawyer or a health and safety lawyer, and if the work- place has safety concerns and if there is a history of drug abuse at the site, they should go ahead with testing, Dutton says. Any- one found to be using could be sent on leave for rehabilitation, he says. FOCUS It's time to rank… THE TOP 10 CORPORATE AND IMMIGRATION BOUTIQUES Complete the survey online at canadianlawyermag.com/surveys and make your picks. SURVEY IS OPEN UNTIL JUNE 9 th Untitled-3 1 2018-05-08 4:55 PM The 2018 Lexpert Zenith Awards celebrate mid-career excellence in the legal profession. You can support these achievements while networking with winners and leading members of the legal profession at an elegant cocktail reception and dinner gala in Toronto. Keynote Speaker: Professor Lorne Sossin Date: June 19, 2018 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Business attire To book your attendance or to inquire about sponsorship, contact us at 416-649-8841 or MediaSolutions.Sales@thomsonreuters.com Lexpert.ca/zenith Bronze Sponsor Bronze Sponsor Cocktail Sponsor HOSTED IN PARTNERSHIP WITH Celebrating Mid-Career Excellence THE E B O L G AND MAIL Untitled-5 1 2018-05-22 4:26 PM See Clients, page 12 Daryl Cukierman says he has been advising employers to ensure that there is no unin- tentional loophole in the language around cannabis use in their existing drug policies. The whole rationale for legalizing marijuana in Canada is that, in contrast to some other drugs, it's not physically addictive. Richard Charney

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