More than a year has passed since the Federal government legalized cannabis, signaling a culture-shift in society’s attitude towards marijuana use. Ottawa’s endorsement of recreational marijuana-use has wafted into the workplace, like employment, health & safety, and human rights laws are forced to adapt to changing times. Despite the lack of criminal sanction, the question remains: can you get fired for consuming marijuana or cannabis use at work? In Ontario, the short answer is “yes”.

Consuming cannabis in the workplace, or being under the influence of psychotropic substances, may only be permissible if it is necessary to accommodate a Human Rights Code-protected disability, assuming no risk to the health and safety of others, and assuming the employee can still perform the essential components of their job.

The Supreme Court of Canada neatly unpacked this concept in Stewart v. Elk Valley Coal Corp., where an employee (Ian Stewart) was fired after crashing an industrial vehicle under the influence of a narcotic. The employer had a written policy requiring employees to disclose any dependence or addiction issues, as a result of which the employees would be accommodated. Mr. Stewart, however, ignored the policy and only disclosed his drug-addiction after the crash. The Supreme Court held that Elk Valley did not discriminate against Mr. Stewart for his cannabis use at work, as his termination was motivated by his failure to abide by Elk Valley’s lawful policies, not his substance abuse.

Stewart v. Elk Valley Coal Corp. and similar cases allow us to extract the following lessons for both employers and employees:

  • The legalization of recreational cannabis use does not give an employee carte blanche to consume or be under the influence, at work
  • Subject to accommodate a disability, an employer may outright prohibit cannabis use, just as it may prohibit the consumption of alcohol, tobacco, and other controlled substances on its premises
  • An employer’s duty to accommodate does not require it to tolerate impairment that could impact health and safety or interfere with the employee’s ability to perform the essential components of their job
  • While cannabis-use may fall under the protection of human rights legislation, “smoking” is not protected. An employer may prohibit smoking marijuana and simultaneously permit cannabis use through other means
  • Employees with a recognized and protected disability may still be fired if they disregard their employers’ substance-use policies