FTR Views

Medical Marijuana in the Workplace

FTR Views

Medical Marijuana in the Workplace

Date: October 18, 2017

With an increasing number of employees receiving prescriptions for medical marijuana to treat various ailments, employers and service providers are grappling with how to respond. In this video, Jacqueline Luksha discusses the implications of medical marijuana in the workplace and at places of business, touching on the duties of employers and service providers to accommodate medical marijuana’s use while ensuring a safe work environment. To assist employers and service providers, she provides some best practices on how to meet those obligations.

Transcript

Hi my name is Jacqui Luksha and today I will be speaking to you about medical marijuana.

Medical Marijuana is here to stay.

Health Canada predicts that there will be 450 thousand medical marijuana users in the next ten years.

In light of this, it is no wonder that medical marijuana is a hot topic amongst employers and service providers.

Both must prepare for the reality of medical marijuana in their workplace or their place of business.

Let’s take a quick step back – until marijuana is legalized, there is no protection for recreational marijuana use. And there is also no legal avenue for access to recreational marijuana.

It’s only those who have been prescribed marijuana are exempt from the Controlled Drugs and Substance Act.

Those who have been prescribed marijuana can access it in many forms. Dried, fresh and oil being a few of the different forms.

And different compositions and different forms of marijuana may have different effects and levels of impairment on each user.

Accommodating the use of medical marijuana is complex and nuanced.

Each case must be determined on its own facts. Blanket rules cannot be simply applied and decisions cannot be made on the basis of assumptions.

Accommodating the use of medical marijuana requires a balancing of interests.

Employers and service providers must consider two duties:

One. The duty to accommodate to the point of undue hardship under the Ontario Human Rights Code. In doing that, they must keep in mind that the treatment for a disability cannot be divorced from the disability itself. In other words, the treatment (medical marijuana) may itself need to be accommodated.

The second is the duty to take every precaution reasonable to ensure a safe work environment under the Occupational Health and Safety act.

Examples from the case-law show us how this balance might be struck.

As a first point, the individual who is seeking accommodation must prove that they have a disability that requires accommodation. If an employer or service provider wishes to argue that they cannot accommodate that disability because of safety concerns, they will need concrete evidence to substantiate those concerns.

An example is where an arbitrator considered a case in which the employee disclosed medical marijuana use. After the disclosure, he continued to operate heavy equipment for two years without incident. When management eventually found out that he was using medical marijuana in operating that heavy equipment, they moved him to a role where he would not be operating heavy equipment anymore and they cited safety concerns. The arbitrator found that this was problematic because there was no evidence of impairment and no evidence that safety concerns were substantiated. Instead they had two years without incident.

Another thing that you should keep in mind is that individuals do not have a right to smoke anywhere. Decision-makers will instead balance the interests of the medical marijuana users and other individuals who might be affected.

For example, the Human Rights Tribunal of Ontario considered an Applicant’s assertion that he had the right to smoke medical marijuana indoors. The Human Rights Tribunal disagreed and informed him that he could take smoke breaks.

Similarly, another decision-maker dismissed a case in which a restaurant patron insisted on smoking right outside of the restaurant doors and found that it was entirely reasonable to ask him to move a few feet away.

In the end, each case will need to be determined on its own facts, in its own context and based on solid evidence — and not just assumptions or conjecture. There may also be different considerations for safety sensitive situations or those which are governed by specific regulations.

So what does this mean for those dealing with medical marijuana in their workplace or their premise?

  • Policies must be reviewed and updated
  • You may need to request medical information. This could include
  • supporting documentation
  • proof of fitness to work
  • information regarding level of impairment
  • Then both involved parties must facilitate the accommodation process and each have corresponding obligations.
  • The employee must inform the employer, cooperate in the process and be capable of performing their work
  • The employer must accommodate to the point of undue hardship and that is the same for the service provider

In the end, it’s important to treat this like any other request for accommodation where impairment might (but won’t always be) at issue.