Federal regulations permit access to marijuana
for medical purposes, and the use of marijuana can become a
complicated issue in the workplace. Importantly, the Supreme Court
of Canada recently ruled that patients approved under the
regulations should have access to all forms of cannabis products,
including edible or topical cannabis products, as opposed to only
marijuana in dried form. Following the Supreme Court's decision, and given the health risks
associated with smoking, employees who are medically authorized to
use marijuana may choose to rely on alternative means of
administering their doses, such as by brewing marijuana leaves in
tea or incorporating cannabis into baked goods.
The broadening of approved forms of marijuana for medical users
raises several potential workplace issues, including: (1) the
enforcement of drug policies, (2) the duty to accommodate under
human rights legislation, and (3) employee privacy concerns
relating to his or her authorized use of marijuana for medical
The first two of these issues were recently discussed in a decision by the British Columbia Human Rights
Tribunal. In this case, the employer enforced its "zero
tolerance" drug policy by requiring an employee to stop
smoking marijuana while at work. The employee was a cancer patient
who stated that he smoked marijuana as a means of pain-management.
However, despite the employee's alleged use of the drug for
medical purposes, the employee did not have a medical prescription
or the required legal authorization for medical marijuana. Because
the employee was not legally authorized to use marijuana for
medical purposes, the Tribunal held that the employer's
enforcement of its drug policy did not contravene the British
Columbia Human Rights Code. This case serves as an example
of the interplay between the legal regime regulating medical
marijuana and employment policies regulating drug use and health
and safety at work.
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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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