Marijuana at Work after Legalization

The Canadian and Ontario governments have now announced the Rules and Regulations for marijuana, which is set to become legal across Canada for recreational use in October of this year. The legalization of marijuana raises many new challenges and concerns about the effect on workplace safety.

Can recreational marijuana be used at work?

Short answer: no. The Ontario regulations only permit the use of recreational marijuana in private residences. Use elsewhere, such as in cars, public parks, or workplaces can result in provincial offences and fines up to $5,000.

Ontario’s rational for this law is “to protect people from second-hand cannabis smoke, and reduce youth and young adult exposure to cannabis.”

Can an employee be high at work?

Impairment is a long standing issue in the Ontario workplace and marijuana use will complicate things further. Marijuana has psychotropic effects which, like alcohol, can impair judgement, however a direct connection to workplace incidents has not been definitely established. Maclean’s released an article on the health effects of marijuana in the workplace and reported that:

Several studies have examined the impact of marijuana use on workplace outcomes, but with mixed results.

Some have found associations between marijuana use in the workforce and work absenteeism, reduced productivity, job turnover, disciplinary measures, workplace accidents and injuries, unemployment and interpersonal conflict.

However, other studies have found no association with some of these outcomes. Overall, the evidence to date is quite inconsistent.

In 2017, the U.S. National Academy of Sciences published a major report on the health effects of marijuana use, including impacts on injuries and accidents in a workplace setting.

Based on six studies, the review did not find enough evidence to either support or refute a statistical link between marijuana use and occupational injuries or accidents.

The Occupational Health and Safety Act (OHSA) already imposes strict obligations on employers to keep their employees and workplaces safe. These obligations include ensuring workers are not introducing hazards to the workplace as a result of impairment arising from marijuana use.

What obligations an employer has will depend on the individual circumstances of the workplace. The appropriate policies and measures will be different. For example, if an employer, manager or supervisor becomes aware that a worker who operates heavy machinery appears to be impaired, the appropriate steps would be different from an employee who works at a desk most of the day.

In all circumstances a duty is owed to ensure the health and safety of workers are protected and the OHSA is being complied with.

What about Medical Marijuana in the Workplace?

Like any other prescribed medication, Ontario employers have a duty to accommodate an employees illness, including the use of  medicinal marijuana in appropriate places around the workplace in accordance with doctor’s directions.

The duty to accommodate extends to the point of undue hardship. A prescription for medical marijuana does not entitle an employee to compromise the safety of themselves or others. Nor does it entitle them to smoke around others or in doors – Smoke-free Ontario laws apply to the smoking marijuana in the same way they do for cigarettes. However, an employer may have to permit an employee a suitable workplace accommodation to use their medication.

What should I do if I am an Employer in Ontario?

If you already have good policies in place, then they will not need to be drastically changed.

To ensure a safe and hazard free work environment, employers should conduct a risk assessment of marijuana in their workplace, then update their written measures to control the risks or, where practicable, eliminate the hazards identified from substance abuse. It may be a good idea to provide training to management or supervisors on the signs of marijuana intoxication.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

 

 

Video Cameras in the Ontario Workplace

Increases in affordability and availability have made video cameras ubiquitous in both public and private places across Ontario. More so than ever before employers are installing cameras in the workplace.

Video camera surveillance raises interesting employment law issues for both employees and employers. While video cameras are common place in retail stores, banks, manufacturing facilities and casinos, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?

Right to privacy at work

The Ontario Courts have commented that the Ontario legislature “has not gone very far in safeguarding an employee’s right to privacy in the workplace.” In Ontario, there is no specific privacy legislation aimed at the private sector. Neither the Employment Standards Act nor the Occupational Health and Safety Act make any mention of an employer’s obligation or the employee’s rights regarding privacy. Only Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies.

PIPEDA requires a genuine purpose for video camera surveillance in the workplace. Or, in other words, a purpose that a “reasonable person would consider appropriate in the circumstances.” The test set out by the Office of the Privacy Commissioner of Canada (the “OPCC”) to determine the appropriateness for video camera monitoring is as follows:

  1. Is the camera demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy-invasive way of achieving the same end?

Although its aimed at public institutions, the OPCC publishes some very instructive examples:

  • “A minor offence such as littering would, in general, not be considered a substantial or pressing problem. It would, therefore, not meet the required criteria to justify the use of video surveillance.”
  • “A dimly lit area of a public school has been the site of ongoing vandalism and violence. Before considering video surveillance, the school should evaluate the effectiveness of less intrusive alternatives such as increased lighting and foot patrols.”
  • “A video camera that monitors a parking lot indirectly captures information about adjacent properties. To limit the amount of personal information collected by it, the camera is set up to automatically avoid or black out any area or property adjacent to the parking lot.”

Legitimate purpose can be to ensure the safety and security of customers and employees, reduce or deter illegal conduct, or to reduce the risk of legal liability.

Employers must balance the need for video surveillance vs employees’ right to privacy

For purposes of deterring theft, vandalism, assault and sexual harassment, surveillance cameras may be permitted. In grocery stores, banks, manufactories, retail or restaurants, where cash and inventory are stored, there is a reasonable purpose for having cameras. Further, for employees who work in public facing places, such as at reception of a business, there may be no reasonable expectation of privacy in the first place.

On the other hand, in private locations such as washrooms and lunch or break areas it is reasonable for both employees and customers to expect privacy.

In the case of Colwell v. Cornerstone Properties Inc., Ms. Colwell sued for constructive dismissal after her employer installed a secret hidden camera in her private office. The Court did not expressly address whether video cameras are permitted in the office, but instead found that the placement of the hidden cameras, and subsequent lies, violated the implied contractual term of employment, that “each party would treat the other in good faith and fairly”, and poisoned the work environment. Subsequently the Courts have stated that “the placement of a video camera in an employee’s office without his or her knowledge is a serious and intrusive violation of the employee’s privacy.”

Video cameras may be permitted in an office if employees are informed

In a decision from February, 2018, Rouse v. Drake & Drake, Justice Conlon dealt with a wrongful dismissal action of a hygienist from a Dental Office. In this case, Ms. Rouse made her dislike for the surveillance cameras clear prior to, during, and after their installation. She was found by the Court to have “deliberately manipulated the security cameras.” The Court considered her intentional conduct, in rendering the surveillance camera in her office ineffective, as one of the factors that could justify a termination for cause. Ultimately, however, the Court decided for other reasons that there was not cause for her termination.

Audio recording is not permitted

Did you know that Amazon’s Echo can be set up to allow listening in on conversations in other rooms. Amazon calls this feature “drop in”. Given how accessible devices like these are, what is an employees reasonable expectation of privacy, when it comes to their conversations around the office?

In terms of audio recording, employers could find themselves criminally liable under section 184 of the Criminal Code if they are intercepting private conversations unless one or more of the participants consents. Practically speaking this means that conversations between employees cannot be recorded.

Take away

Video cameras can be used in Ontario Workplaces to record video, but not audio, so long as there is a genuine purpose for doing so and employees are informed. Employers should publish and circulate to their employees a video surveillance policy containing guidelines and procedures for the collection, use, and disclosure of the information obtained by video surveillance and publish signage to remove any reasonable expectation of privacy.

In addition, employers should take measures to ensure the recorded images are stored securely, with limited access, and regularly destroyed or deleted.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.