Legalized Marijuana May Present New Business Liabilities

Cannabis problems at work? It’s one grey area that remains following Canada’s recent marijuana legalization, and employers need to know their obligations with regard to accommodating employees with addictions. Lawyer Philippe Richer weighs in on this important employment issue, which he says is the single largest area of potential liability for businesses.

Philippe joined us on Sunday at the Business Builder Retreat - a new addition to the Distinguished Advisor Conference – where he spoke to business leaders about creating your safe havens to beat your competition with legal ease. Excerpted from Philippe’s law blog.

While addressing the issue of employees and liabilities sounds ominous, I would like to point out that the flip side of this observation (or the reverse side of the same coin) is that employees are also our biggest strength. If, as a business owner, you are lucky enough to employ dedicated, competent employees, you will understand what I mean by this. A good team not only makes an owner’s job so much easier, it also guarantees and stabilizes the fundamentals of our businesses.

But this article is not about running a business with a great team. This article is about the challenges a business owner (or manager) faces when a member of that team falters.

The Law
In Manitoba (actually in all provinces, as each province enacted similar legislation), the government enacted the The Human Rights Code. The law (or Code, if you prefer) forbids employers from discriminating against their employees, and discrimination is also defined. The Code establishes that discrimination occurs when (in the case of employment) an employee is treated differently on the basis of a characteristic listed below, or on the basis of that employee’s association with a class or group of people instead of on personal merit.

The characteristics listed in the Code are:
(a) ancestry, including colour and perceived race
(b) nationality or national origin
(c) ethnic background or origin
(d) religion or creed, or religious belief, religious association or religious activity
(e) age
(f) sex, including sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy, or circumstances related to pregnancy
(g) gender identity
(h) sexual orientation
(i) marital or family status
(j) source of income
(k) political belief, political association or political activity
(l) physical or mental disability or related characteristics or circumstances, including reliance on a service animal, a wheelchair, or any other remedial appliance or device
(m) social disadvantage

If an employee exhibits or presents any of these characteristics and that characteristic requires the employer to change something in the workplace, then the employer must accommodate. For example, if you employ someone who is later involved in an accident and that employee becomes confined to a wheelchair, the employer will have a duty to accommodate that employee by ensuring he or she can enter the building, use the washrooms, and continue performing the duties he or she had before. If that is not possible, then the employer must move that employee to another position in the company where accommodation is possible.

Undue Hardship
However, an employer has no obligation to accommodate an employee at all costs. This is reasonable, because, especially in a small business, the types of accommodating required could bankrupt the small business. From a policy perspective, governments don’t want viable and profitable small businesses to go bankrupt for something out of their control. However, the key concept is that they should suffer no undue hardship.

The Supreme Court of Canada stated the following: “More than mere negligible effort is required to satisfy the duty to accommodate.” The use of the term “undue” implies that some hardship is acceptable; it is only “undue” hardship that can be avoided. This means that an employer must make a significant effort to accommodate. Human rights tribunals will not look kindly upon those who make little effort.

Unfortunately, as in most legal concepts, courts and tribunals have not established a clear and specific test to determine whether an accommodation results in undue hardship. The Supreme Court listed some of the factors that may be considered but emphasized that each case must be judged on the specific facts of the situation. The court listed the following factors: financial cost, disruption of a collective agreement, problems of moral of other employees, interchangeability of workforce and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue hardship, depending on the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations.

Addiction
The medical establishment has long accepted that addiction is a mental health problem. Courts and tribunals have also accepted this idea. In fact, in most of the cases I reviewed, the decision maker spends little time discussing the applicability. Rather, most decisions resolve the issue of accommodation.

So, to answer the question: Yes, an employer must accommodate an employee with addictions, including marijuana.

Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate and corporate law, he leads his team in providing accessible legal services. Philippe also authored the Business Law and Contracts course for the Knowledge Bureau and instructed the français juridique class at the Faculty of Law at the University of Manitoba.

Additional educational resources:

1. Get ready for in-person networking opportunities, as Knowledge Bureau has two more Business Builder Retreats planned for 2019. Join us June 22-23 in Winnipeg and November 9-10 in Puerto Vallarta!
2. Join Knowledge Bureau in discussing tough issues, like these, that affect Canadian business leaders, on the LinkedIn Executive Business Builder Network.
3. Enroll online and study at your convenience. A free trial of Business Law from the MFA – Executive Business Growth Specialist is available. Or, complete the full designation.
4. Are you a small-business owner ready to brush up your skills to better address operational needs? Register for our Insurance Strategies for the Small Business Owner or T1 Professional Tax Preparation – Proprietorships certificate courses.

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