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Medical Marijuana & Employment Law
Medical marijuana may still be a political hot button topic, but for many employers it’s fast becoming an important topic in the workplace. Seen as a “super drug” capable of aiding in a host of conditions, marijuana was legalized in 2001 for medical purposes and as of April 2014 users are no longer required to obtain a license from Health Canada for its use. Medical marijuana, like any other prescription drug, can now be secured from an authorized distributor with a physician’s prescription. With the drug easier than ever before to obtain, Health Canada estimates that by 2024 the industry will grow 10-fold with as many as 450,000 medical marijuana users. This rapid growth means a new set of questions and challenges for employers. Below is a general overview of what employers should know.
Employees using medical marijuana are not obligated to tell their employer they are taking the drug, as under the new laws, medical marijuana is treated like any other medically prescribed painkiller. Consequently, employers should review their workplace drug policies to ensure they are all-encompassing. A workplace policy limited to illicit drug use and alcohol use may not be enough. Employers should consider a supplementary policy on the disclosure and use of medical marijuana in the workplace. As well, employers may consider addressing the use of medical marijuana within offer letters, prior to the commencement of the employment relationship.
3. Accommodating users of Medical Marijuana
Under current provincial and federal human right legislation, employers have a duty to accommodate the needs of employees who have a medical condition or disability. Given the current classification of medical marijuana, it engages the same principles of accommodation as any other prescribed drug.
Under both federal and provincial human rights legislation an employer is required to accommodate a disabled employee "to the point of undue hardship." In the context of medical marijuana, that means an employer must consider the full needs of the disabled employee. In Wilson v. Transparent Glazing Systems Ltd., it came to the employer's attention that Gregory Wilson was taking medical marijuana. Mr. Wilson became aggressive and was later terminated for performance-related issues. The British Columbia Human Right Tribunal held that Mr. Wilson's termination was inappropriate under the circumstances and held that the employer had an obligation to ask the employee whether the medication he was taking was affecting his ability to perform his job.
In light of the above case, and other similar cases, it is advisable that an employer explores whether an employee who is using medical marijuana requires accommodation. This may involve moving the employee out of a safety-sensitive position, altering duties and schedules, and/or providing more frequent breaks.
4. Limits of Accommodation
A prescription for medical marijuana is not carte-blanche for an employee to consume marijuana. For instance, a prescription for medical marijuana does not entitle an employee to be impaired at work, to compromise his or her safety or that of others, or to have unexcused absences or late arrivals.
Also, employers can put limitations on the drug's use in the workplace as demonstrated in the case of the now deceased Cpl. Ronald Francis. Francis made headlines in the fall of 2014 for consuming marijuana for post-traumatic stress disorder while in his RCMP uniform. The RCMP objected, citing while it was willing to accommodate Francis’s marijuana consumption while on the job, it was not willing to do so while he was in uniform. The RCMP cited concerns about safety and the message that it was sending to the public. Unfortunately, Francis died before the issue could be fully resolved.
Further, as referenced above, an employer is not obliged to accommodate an employee beyond the point of undue hardship. In French v. Selkin Logging, the British Columbia Human Rights Tribunal found that Selkin did not discriminate on the ground of physical disability by refusing to allow French, a heavy equipment operator, to continue smoking marijuana while at work.
Selkin, a logging contractor, had a zero-tolerance policy for drugs. French maintained he needed to use marijuana, as he was a cancer patient. However, he was not legitimately allowed to possess marijuana, and he never informed the company. In applying the Meiorin test, the Tribunal found that Selkin’s zero-tolerance policy for safety reasons constituted a bona fide occupational requirement (BFOR). Thus, while French was expressly terminated for using marijuana contrary to the company's policy, it was clear that the policy constituted a bona fide occupational requirement. In retrospect the Tribunal’s decision could have been different if French approached Selkin with an authorization to use medical marijuana.
5. Drug Testing
In the face of rising marijuana consumption, employers may be tempted to subject their employees to drug testing. In the United States, employers are known to carry out routine workplace drug and alcohol testing. However, in Canada such practices are not mainstream, and the courts and tribunals view such tests with a dose of skepticism. Some past case law have succeeded in establishing that such tests are not reliable indicators in measuring impairment.
Where an employer wishes to subject an employee to drug testing, caution is advised as the onus is on the employer to demonstrate reasonable cause for such an action. The fact that an employee smells of marijuana won’t be enough.
6. Prescription Coverage
Coinciding with the rise of marijuana use, we are likely to see increasing requests for employers to provide coverage within workplace medical plans. In the past, the request for coverage has been rejected by workplace compensation boards and the courts on the basis that marijuana was not recognized as a prescription drug. However, given the current classification of the drug, employers, or their insurers, may be responsible for reimbursing injured or disabled employees for some or all of the cost for medical marijuana treatment.
As the use of medical marijuana grows, employers would be wise to review existing policies and overhaul them where need be. Current and new employees should be apprised of disclosure protocols and accommodation plans dealing with use. With respect to drug testing, employers are advised to proceed with caution. In the case of prescription coverage, employers should review existing medical and group insurance plans with their insurance coverage providers as new coverage obligations may arise.