December 3, 2014
On April 1, 2014, the Marihuana for Medical Purposes Regulations became effective. The Regulations provide that anyone who requires medical marijuana for a variety of health reasons will no longer need a licence from Health Canada to obtain it – a simple doctor’s prescription will do. As such, medical marijuana must be treated like any other prescription medication.
In order to avoid unnecessary disputes, employers are encouraged to make changes to their workplace policies as the use of medical marijuana continues to increase in Canada, including Thunder Bay.
A prescription for marijuana does not automatically mean it may be used in the workplace. Both the employee and the employer are subject to certain obligations with regards to the use of medical marijuana in the workplace.
- 1. Duty of Accommodation under the Ontario Human Rights Code
There is a duty of accommodation owed by the employer to the employee for the use of medical marijuana under the Ontario Human Rights Code. Medical marijuana engages the same principles of accommodation as any other doctor prescribed drug. Section 5.1 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of disability.
Medical marijuana is used to treat a variety of illnesses that would meet the definition of “disability” under the Code. The prospect of its use at the workplace engages the issue of accommodation. The Code imposes a duty on employers to accommodate employees’ disabilities to the point of undue hardship. There are different factors when determining whether or not the request for accommodation meets the threshold of undue hardship to the employer, namely:
- cost of accommodation,
- any outside funding to help with the costs of accommodation, and
- any health and safety concerns the accommodation may pose.
To date, no employer has been able to successfully establish undue hardship based on the health and safety risks posed by marijuana.
- 2. Duty of Accommodation under Ontario’s Occupational Health and Safety Act
The use of medical marijuana in the workplace is also governed by Ontario’s Occupational Health and Safety Act. Under section 25 of the OHSA, employers have a duty to “take every precaution reasonable in the circumstances for the protection of a worker.” This being said, employees do not have a right to be impaired in the workplace where the impairment may endanger their own safety or the safety of co-workers.
The employer should request medical documentation from the employee that speaks to the ability to safely carry out assigned duties. If the injury discloses a meaningful impairment in the employee’s capacity to carry out their job (impairment of the cognition, judgment, perception, coordination or other ability that is central to the employee performing his/her job safely and effectively), then the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment. The employer’s obligation to accommodate does not end when a meaningful impairment of the employee’s ability to perform their current job becomes apparent. The employer may be obligated to accommodate the employee in other ways such as allowing the employee a leave of absence while undergoing marijuana treatment, or providing the employee with alternative forms of work that do not engage safety concerns (if there are safety concerns with their current job).
The employer should be wary that termination of an employee, without first asking whether the medication the employee was taking was affecting job performance, will likely be found to be inappropriate. Based on the legislation, employers do have a broad obligation to investigate and make efforts to accommodate employees using prescription medications, including medical marijuana.
But what if an employee doesn’t disclose they are using medical marijuana to the employer or doesn’t request accommodation? Authorized users are under no obligation to disclose to an employer they are taking the drug. It may come to the employer’s attention indirectly. In the case where an employee does not disclose, it is important to have policies in effect to deal with employees who do not disclose, or the process to disclose.
WHAT SHOULD EMPLOYERS DO?
It is important for employers to effectively and precisely communicate the employee’s entitlements and obligations with regards to using or being under the influence of medical marijuana. The following are recommendations for creating or amending a current policy for medical marijuana in the workplace:
- The definitions should be worded broadly enough to deal with medical marijuana. That means that such terms as “impairment” and “under the influence” should be specifically defined so employees understand whether or not they fall under the scope of the policy;
- Employers should communicate what, if any, uses of medical marijuana will be considered acceptable in the workplace, and the appropriate procedure for reporting the use of it. Zero tolerance policies are not advisable, as they have been deemed unenforceable in many instances. Policies should still set the boundaries and protocol for use and reporting use during working hours;
- Require an employee to disclose information about any prescription drug that may impair his/her ability to perform work safely;
- Prohibit an employee in a safety-sensitive position from working while impaired;
- Set out a process for obtaining additional medical information to facilitate accommodation;
- Consult with employees seeking accommodation when establishing the appropriate adjustments to the employee’s work duties, schedule or work arrangements;
- Ensure disciplinary consequences of breaching the use, reporting protocols and other policy breaches, including the sharing and/or selling of medical marijuana or any prescription medication in the workplace, and
- Consult with the Workplace Health and Safety Committee regarding development of a policy regarding medical marijuana.