Dear Herb: Can I ask prospective employees about their cannabis use?
The federal Cannabis Act doesn't directly affect hiring practices in Canada, but legalization could inspire employers to ask more questions
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Hey there, time traveller!
This article was published 05/09/2018 (1611 days ago), so information in it may no longer be current.
Dear Herb: I hire employees for my businesses. After the law is changed, what kind of questions am I allowed to ask in a job interview regarding the candidate’s usage of medical and recreational cannabis? — Harvey the Hiring Manager
Dear Harvey: Thanks for writing in. I imagine some other Canadian business owners are also wondering whether cannabis legalization will change their hiring practices, so let’s get to it.
To help answer your question, I called up a human resources expert who specializes in cannabis-related issues: Alison McMahon, CEO and founder of the HR consultancy and recruitment firm Cannabis at Work.
First and foremost, nothing in the federal Cannabis Act will directly affect hiring practices in Canada as far as the law is concerned, McMahon said. Medical cannabis is already legal in Canada, she pointed out, so hiring managers, such as yourself, are already dealing with prospective employees’ use of the drug for therapeutic purposes.
"People who have a medical authorization for cannabis typically are falling under a human rights protected ground of either physical or mental disability," she said.
"And so typically, employers do not ask questions in the interview process that would infringe upon a protected ground because if you’re basing a hiring decision on a protected ground, then that could be discriminatory."
Instead of directly asking someone whether he or she uses cannabis for medical purposes and why, employers should be clear about any of the physical demands, or work environment-based demands, of the job, McMahon advised.
For example, if your job posting specifies that an employee must meet a certain physical requirement to perform the job — say, regularly lifting 50-pound boxes — you could ask in the interview if there’s anything that would prevent them from meeting that criteria.
But even that can be a slippery slope, warned McMahon.
"If you start to get into the details of somebody’s physical or mental disability in the interview process, and then they make a claim that you used that information in your hiring process not to hire them, and that was discriminatory, now you’re potentially in a position where you have a human rights claim," she said.
Hiring managers can also use a job interview to explain their drug and alcohol policy to prospective employees, suggested McMahon. That could give interviewees a chance to rethink whether the job’s right for them given their medical needs.
"A well-rounded drug and alcohol policy should be talking about the implications of prescription-based medications, as well as recreational or illegal drugs," she said.
That brings us to a thornier topic: asking interviewees about their recreational cannabis use. According to McMahon, you absolutely can ask — but that doesn’t mean you necessarily should.
"Somebody’s use of a recreational substance is not a protected ground under human rights legislation, so as an employer, you don’t have that same concern about infringing on protected grounds and getting into a scenario with discrimination." she said.
If you’re an employer with a safety-sensitive work environment and a comprehensive drug and alcohol policy including drug testing, that should be brought up during the first meeting," McMahon said.
"I think that’s definitely a scenario where the employer, while they might not ask that question directly, should be very, very clear in the interview process about the drug and alcohol policy, and about the boundaries in that workplace."
But for non-safety sensitive employers, McMahon has different advice.
"Could you ask the question? Sure. I guess I would play the devil’s advocate, and ask, ‘Why are you asking that when we’re talking about a legal recreational substance?’ You probably don’t ask people, ‘Do you drink alcohol?’ in the interview, so why would you ask, ‘Do you use cannabis?’"
If you ask a prospective employee whether or not they use cannabis, they tell you they do, and you don’t hire them as a result, McMahon doesn’t expect they would be able to file a human rights claim against you.
But again, that doesn’t mean asking about someone’s legal substance use makes sense (outside of safety-sensitive jobs).
"If we are talking about somebody who is choosing to partake in a legal recreational substance,outside of work hours… It’s really not the employer’s right to know everything that the employee is doing in their personal time," said McMahon.
Instead, she again advises employers to explain their policies to potential workers.
"The employer, in an interview process, has an opportunity to talk about the company, about the company culture, about the expectations of employees in that role, and has the opportunity to be very clear about things like a drug and alcohol policy if they so wish," she said.
That would give a cannabis-using interviewee a good chance to decide whether they would actually want to work there.
"If this is somebody who chooses to use cannabis in their life, they’re probably going to feel like that’s not a good cultural fit, and not want to pursue the interview process any further," said McMahon.
"Is that a 100 per cent guarantee? No, not necessarily, but I think that that’s really the best position for an employer to take on this, instead of acting people directly about their use."
McMahon had one final thought on the topic — even if you do ask your job applicants about their use of cannabis, there’s no guarantee they’ll be honest about it.
"I think there’s a lot of people that would feel put on the spot with that question, and might not answer truthfully."
That’s all for this week. For the record, The Leaf News isn’t hiring — but if we were, being a cannabis user wouldn’t hurt your application.
Got a question about cannabis? Herb answers your questions about legal consumption and growing, the law, etiquette — you name it, he’ll look into it.
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