Canada: Medical Marijuana: Considerations For Employers

There has been a significant culture shift in the use of marijuana over the last few years, specifically owing to its reported benefits in treating the symptoms associated with various medical conditions (headaches and chronic pain, amongst other) and in addressing the side effects associated with certain medical treatments (nausea from chemotherapy, appetite improvement, etc.). While recreational marijuana remains a controversial issue, the courts have granted legal access to marijuana for individuals with a medical need. Not only has there been certain reluctance by the courts to limit the forms in which the drug can be consumed by those with medical needs, the courts have further required "reasonable access" to a legal source of medical marijuana. In response, the Government of Canada implemented the Access to Cannabis for Medical Purposes Regulations1 to improve access to medical marijuana.

Health care practitioners are tasked with primary responsibility in authorizing medical use of the drug. As physicians become more at ease in prescribing marijuana for medical purposes, it is reasonable to forecast an increase in the number of employees in the workplace with a prescription for the drug. This raises challenges for employers that have a duty to accommodate their "disabled employees" and further conflicts with an employer's desire for a drug-free environment.

Human Rights and the Workplace

Under human rights legislation, individuals are afforded equal treatment in employment and freedom from discrimination because of disability.2 In that respect, employees with disabilities are entitled to the same opportunities as those who do not suffer from any disabilities. Employers are obligated to accommodate employees with a disability, so long as it does not create undue hardship for the employer. This duty of accommodation includes the treatment that follows the disability.

It is common knowledge that marijuana use can cause "impairment" to the user's physical and/or cognitive aptitudes. This impairment can affect both the employee's ability to perform his or her employment tasks and can also pose a serious risk or threat to others. Similarly to other prescribed drugs, a prescription for medical marijuana does not entitle an employee to be impaired at work or to compromise the safety of others.

Obligations of Employers

Given its current classification, prescribed marijuana should be treated as any other prescription drug that affects an individual's ability to safely and effectively perform his or her duties (for e.g., opioids). Instead of making significant changes to workplace policies, employers should likely echo the policies in place to accommodate employees with other prescribed drugs, with the appropriate safeguards in place to ensure a safe and productive environment.

Employers have been found to have a duty to ask the employee whether the medication being using to treat a disability affects job performance. Employers should review their existing policies and implement protocols to assess the impact of marijuana on an employee's ability to safely and effectively perform his or her job duties. This assessment should be done in conjunction with the employee's health practitioner so that the term "impairment" is properly defined and to determine the employee's level of productivity while under the influence of marijuana. This would further assist in delineating the level and nature of the required accommodation, on a case-by-case basis. This may result in a change of duties or work schedule for a mild impairment or could result in a leave of absence/application for disability benefits for more significant impairments.

Employers also ought to be cognizant of the various forms in which medical marijuana can be taken. While smoking is an option, many users consume edibles, oils or pills. As smoking can cause passive inhalation, an employer's interest in fostering a smoke-free environment could conflict with the patient/employee's right to choose how they consume their 'medication'. Given this, employers should consider implementing a policy to accommodate employees who seek to medicate at work through consumption in its various forms and, in doing so, should contemplate the wide variety of uses for medical marijuana. Policies for drug-testing should further be reviewed to include exemptions and guidelines for medical users.

Employers also ought to ensure that their employees are aware of the consequences of sharing their prescription with other employees without a prescription.

Limits on Duty to Accommodate

Although an employer must provide reasonable accommodation, it is only required to do so up to "undue hardship." This standard is set rather high. Under section 15(2) of the Canadian Human Rights Act, the factors to be considered when assessing undue hardship are limited to health, safety and cost. On an undue hardship defence, employers must support their claim with objective, real and direct evidence.3 An employer's carefully documented file will assist in this assessment and further serves as an added protection to potential claims for discrimination.

Conclusion

The recent report by the Task Force on Cannabis Legislation and Regulation raised concerns about the impact of marijuana use in the workplace for people working in safety-sensitive positions, including the industries of healthcare, law enforcement, transportation, construction, or resource extraction. The Task Force noted that there was an urgent need for research to reliably determine when individuals were impaired. One of the recommendations proposed to the federal government was that it collaborate with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies. It is anticipated that there will be significant changes in the years ahead as research intensifies and the risks are better understood.

While there is no doubt that the law will shift over the next few years and litigation will eventually clarify the uncertainties surrounding medical marijuana, employers should prepare by implementing best practices and policies to address the many implications of medical marijuana in ensuring a productive and safe environment. Employers should work with health and safety committees in developing suitable accommodation plans, as well as procedures for disclosure and use of medical marijuana in the workplace, particularly in safety-sensitive positions. Employers who fail to properly implement policies may be seen as having engaged in improper conduct by failing to address the needs of their disabled employees. As the law evolves in the area, it would be wise for employers to regularly revise their policies to adhere to the changes in the law.


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Footnotes

1 Access to Cannabis for Medical Purposes, SOR/2016-230.

2 Section 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19.

3 British Columbia v British Columbia Government Service Employees' Union (Re Meiorin) v. BCGSEU, (1999) 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia(Council of Human Rights), [1999] 3 S.C.R. 868 (known as the Grismer Estate case).

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