We all know medical marijuana use is on the rise, and Health Canada expects the numbers to continue to skyrocket. As such, workplace accommodations will pose a complex issue for employers who will have to wrestle with the “duty to accommodate” on one side and “occupational safety” on the other (never mind public perception and your organizations reputation).
We best get familiar with this topic as it will quickly become part of your organizations lexicon.
I am an avid follower of Howard Levitt, senior partner of Levitt & Grosman LLP, employment and labour lawyers. He captured and summarized this topic perfectly. You can follow Mr. Levitt at Twitter.com/HowardLevittLaw.
Using marijuana remains illegal for most people, despite the Liberal federal government’s push to legalize it. Even if marijuana use is legalized, employers still have the right to prohibit it in their workplaces and to create policies that allow them to fire employees who come to work intoxicated, subject to the same rules that apply to alcohol use.
However, that is not the case with prescribed medical marijuana. Since the passing of legislation in 2014, the number of employees alleging that their use of marijuana is related to chronic pain, cancer, sleeping disorders, and so on, has grown.
While employers may wonder whether the employee is genuinely in chronic pain, and whether marijuana is the most appropriate drug to manage it, these are purportedly invasive questions they are prohibited from asking.
The use of medical marijuana triggers the same principles of workplace accommodation as any other medically prescribed treatment. If an employee informs you he or she needs to take the drug at work, the employer’s statutory obligations are triggered.
Happily, this does not circumvent the employer’s obligation to ensure all employees are safe. The Occupational Health and Safety Act, states the employer must provide a safe working environment for everyone — including protecting them from impaired employees. This extends to the user. If you can establish that there is a meaningful impairment in the employee’s capacity to carry out his or her job, you may be able to enforce a zero tolerance policy against employees coming to work intoxicated or using marijuana during the workday.
That argument is stronger if danger exists in the workplace or there is safety-sensitive equipment. Even then, you may have to provide the employee with a leave of absence while they use the drug, or work (if you have it) that does not create a safety risk.
The uncertainties around medicinal marijuana use are daunting because the issue has yet to be litigated. Following are a few guidelines to help employers deal with marijuana in the workplace:
Accommodation If the employee operates safety equipment, determine the availability of administrative work the employee is qualified for, before you tell them accommodation is not possible.
Investigate Remain cognizant of your obligations under the Occupational Health and Safety Act. Don’t make assumptions about an employee’s ability to carry out their job functions safely, determine whether or not they can.
Disclosure If an employee is using marijuana in the workplace, but has not disclosed it to you, you can move to discipline or terminate. Your obligation to accommodate someone’s marijuana use is only triggered once they disclose the use is for medicinal purposes. Only then are Human Rights protections engaged. Even when an employee says it is prescribed, ask for proof – you are entitled to it.
Protect your reputation While you can’t say no to the use of medicinal marijuana, you can ensure the employee does not tarnish your corporate image. An onlooker cannot distinguish between recreational and medicinal use, so if an employee is using it – you can insist they don’t smoke it at work and prohibit them from telling others in the workplace, particularly when the information would reflect badly on you.
Request for information Nothing precludes you from sending a questionnaire home with the employee to be filled out by a physician. You are allowed to ask how much marijuana the employee is required to use and what parts of the employee’s job may be affected by that consumption. A simple prescription does not permit free reign.
Despite the fact that marijuana may manage some medical conditions, you are permitted to have frank and fair discussions with the employee about what they can and cannot do.