The Marihuana for Medical Purposes Regulations that
became effective on April 1, 2014, could substantially increase the
number of Canadians who are using lawfully prescribed medical
marijuana. As the number of prescribed users increases, the greater
the likelihood that an employer will have one of its employees
requesting to use medical marijuana in the workplace. The purpose
of this update is to review some of the workplace issues that both
employers and employees need to consider regarding the use of
medical marijuana in the workplace.
Take Requests Seriously –
Medical marijuana is a prescribed medication and employers need to
take requests for accommodation seriously and should not dismiss
employee inquiries without proper consideration.
Don’t Stigmatize Medical
Marijuana – Medical marijuana is similar to
other prescription drugs, such as, Percocet or Oxycontin that may
be used for pain relief and that have the potential to impair an
employee’s ability to perform their duties and
No Right to be Impaired at
Work– The right to use prescribed medical
marijuana to treat a disability or medical condition does not
entitle any employee to be impaired at work or in the course of
performing his or her duties.
Safety Sensitive Roles –
Special circumstances apply, and it may be appropriate to request
an independent medical review or third-party medical examination,
if the employee requesting accommodation is employed in a safety
Update Policies – Employers
need to consider updating their policies relating to drug and
alcohol use including:
outlining acceptable use of prescription (including marijuana)
and non-prescription medication;
outlining when notice to the employer of prescription and
non-prescription medication use is required; and
confirming that employees cannot come to work or perform their
Where Can Employees Use Their Medical
Marijuana? – This is a complicated issue that
will have to be considered in the context of each workplace and
each request for accommodation. A variety of potential legislation
and obligation needs to be considered including:
Smoke-Free Ontario Act – As currently drafted,
marijuana is not a tobacco or tobacco product for which the use is
currently prohibited in an enclosed space.
Human Rights Code – The duty to accommodate
requires reasonable accommodation and not necessarily the
employee’s mere preference. A balancing of interests will
likely need to be considered.
Occupational Health and Safety Act (OHSA) –
There is a general obligation under OHSA to take every reasonable
precaution to protect the health and safety of workers and one
employee’s request to use medical marijuana in the workplace
will need to be balanced with the duty to protect the health of all
workers (e.g., right not to work in environment with
The above is a general overview of issues to consider in the
workplace and it is important to remember that each workplace is
different and each request for accommodation will be based on its
own facts and circumstances (e.g., union or non-union,
safety sensitive role, province in which the employee is employed,
etc). At Bennett Jones we have a team of professional advisors that
can provide guidance to employers regarding their obligations and
best practices as the workplace adapts to the lawful use of medical
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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