Since the implementation of Canada's federal Cannabis Act in 2018, workplace cannabis use has been a hot topic in employment law.

Many employers were, and remain, concerned about how to mitigate the risk of workplace impairment from cannabis use. What policies need to be implemented in the workplace? Is it reasonable to enforce drug testing in the workplace? Is the use of cannabis for medical purposes permitted in the workplace?

The use of nonmedical cannabis in the workplace can be compared to the use of alcohol—neither is permitted. However, the approach differs when the use of cannabis is for a medical purpose, for example chronic back pain.

While an employer has a duty to accommodate an employee's disability, employees cannot claim the right to be impaired and create any risk at work. An employer would extend accommodation to employees using medical cannabis in the same way as it would for any other prescribed medication. However, the duty to accommodate is limited.

Even with a medical prescription, an employee cannot consume cannabis in an unfettered manner that is unsafe or compromises the safety of themselves or others. For example, a medical prescription does not entitle an employee to unexcused absences or to walk around the workplace high.

Workplace safety matters and the Ontario Human Rights Tribunal made this clear in the case of Aitchison vs. L & L Painting and Decorating Ltd. In this case, an employee was terminated for ingesting cannabis at the...

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