An article from a Toronto lawyer in the co-op sector. September 14, 2018.
With the impending legalization of cannabis, we have received requests from a number of housing providers to assist in developing policies that deal with the use and growth of cannabis in units. We have also received requests from employers around policies that prohibit the use of alcohol and drugs in the workplace. While policies should be crafted to suit a particular workplace or residence, below are a few considerations that employers and housing providers should bear in mind when creating rules around cannabis:
No Smoking Policies: Unlike private landlords who are precluded from amending leases to include new terms without the tenant’s consent, co-ops and condominiums can introduce no smoking policies so long as those policies are approved in accordance with the by-laws and the governing legislation. Co-ops and condominiums looking to introduce a policy that prohibits the smoking of cannabis, or wishing to amend an existing no smoking policy to include cannabis, should consider whether the policy includes an exception for the use of medicinal marijuana. Housing providers have a duty to accommodate residents with disabilities to the point of undue hardship; a policy that includes a blanket prohibition on the consumption of cannabis may not hold up on the basis that it is discriminatory toward individuals who use medicinal cannabis, and breaches the Human Rights Code. This does not mean that there is an unfettered right for co-op members or tenants to smoke in their units; however, it does mean that the housing provider must take steps to accommodate a disability that requires the use of medicinal cannabis.
No Growing Policies: As of October 17th, it will be legal to grow up to four marijuana plants per household. A number of housing providers have expressed concern about the possibility of residents growing cannabis in their units. While growing cannabis is not (as yet) protected under the Human Rights Code, it is worth considering the basis for a ‘no grow’ policy. The limit on the number of plants means that the likelihood of damage to the unit as a result of heightened levels of humidity, causing mold, is low. There is also the practical consideration of how such a policy would be enforced. We encourage housing providers to carefully consider the rationale for establishing a policy that prohibits residents from growing cannabis, and the methods of ensuring compliance.
“Zero Tolerance” Drug and Alcohol Policies in the Workplace: Like housing providers, employers have a duty to accommodate employees with disabilities to the point of undue hardship. A policy that provides for termination in the case of employees found to be under the influence of alcohol or cannabis in the workplace could be discriminatory on the basis that it fails to accommodate employees who are required to use medical cannabis. While the courts have found that zero tolerance policies may be justified in safety sensitive workplaces, like construction sites, workplaces that are not safety sensitive should be wary of establishing policies that provides for automatic termination in the event that an employee is found to be under the influence of drugs or alcohol in the workplace. As a starting point, employers who are introducing drug and alcohol policies at this time should distinguish between recreational and medicinal use of cannabis. Individuals who are required to use medical cannabis do not have an unfettered right to consume it in the workplace; however, employers are required to develop an individualized accommodation plan that takes into account the employee’s disability, unless it amounts to undue hardship. A well-rounded workplace policy might state that employees found to be under the influence of recreational cannabis or alcohol will be subject to a policy of progressive discipline. Policies can also prohibit employees from bringing cannabis into the workplace (unless it is for medicinal purposes). Such policies should be applied evenly, taking into account any individual needs for accommodation.
This summary is not intended to be legal advice. Any policies concerning the use and prohibition of cannabis in the context of housing or employment should be crafted to meet specific needs and goals. We at Iler Campbell have experience in developing such policies, and would be pleased to assist you.