A worker who used medical marijuana has been ordered to give his
employer any medical records touching on his treatment.
The worker was a long-service journeyman welder employed at the
employer’s potash mine. He claimed to suffer from an anxiety
disorder and headaches. He obtained a prescription for medical
marijuana to treat his medical condition, and an authorization from
the federal government for that prescription. He claimed to use
medical marijuana in the evenings, away from work – not in
the workplace. He disclosed this information to the
employer’s workplace occupational health nurse.
The employer then suspended the employee and placed him on leave
until he provided evidence that he is no longer being treated by a
prohibited substance that exceeded the employer’s identified
thresholds and caused impairment. The worker discontinued his
marijuana use and filed a grievance alleging discrimination because
of his “medical prescription”.
The employer demanded that the employee produce his application
for medical marijuana authorization, and medical records pertaining
the conditions treated by the medical marijuana and the treatment
proposed or undertaken. It argued that without that information, it
could not assess whether marijuana is an appropriate treatment,
whether a more appropriate treatment was available, and whether the
worker was fit to work in a safety-sensitive position while under
the influence of marijuana.
The arbitrator noted that because the employer had acknowledged,
in a communication with the Saskatchewan Human Rights Commission,
that the employee suffers from anxiety and cluster headaches, it
could not resile from that admission in this case. As such, the
employer was not entitled to medical documentation about the
worker’s “underlying disability”.
The employer was, however, entitled to medical documents
relating to the employee’s current or proposed treatment. The
availability of alternative treatments was an issue in the
arbitration. The employer could not argue its case if it was not
permitted to have access to the medical records dealing with the
worker’s proposed and undertaken treatment. Further, the
union was challenging whether the worker’s prescription and
use of marijuana would cause impairment such that he would be unfit
and/or unsafe for work. This also made the treatment documentation
relevant. The arbitrator decided that the employer should be
permitted to determine what information the employee’s doctor
had about the worker’s “Fit for Duty workplace
requirements” in terms of permitted treatment options, strain
potency and frequency of marijuana use, and whether alternative
treatments were available, appropriate and/or recommended.
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