Since April 1, Canadians who need medical marijuana to control pain now only require a doctor’s prescription instead of a licence from Health Canada to obtain the drug. While individuals still need a licence to possess, they can go to an accredited or approved distributor to obtain their prescription.
“What we think is going to happen is that because doctors have the ability now to write a prescription as they would for any other medication there is going to be an increase in the use of medical marijuana and the frequency we see it in the workplace with individuals affected,” said Patrizia Piccolo of Rubin Thomlinson LLP during a recent seminar the firm held on the subject.
Some of the conditions medical marijuana can aid in include attention deficit disorder, arthritis, back and neck problems, chronic pain, colitis, Crohn’s disease, eating disorders, head injuries, HIV, fibromyalgia, migraines, and sleep disorders.
But whether it’s a painkiller like Percocet or medical marijuana, it’s the same issue, says occupational health and safety lawyer Jason Beeho of Rubin Thomlinson, who says employers should review policies they have in place regarding general impairment by prescription drugs.
“If you have just a generic illicit drug and alcohol policy, it probably needs some renovation,” he says. “I think the approach has to dovetail with the same approach you would take if someone said they are on powerful painkillers for a chronic back problem.”
As well, offer letters for jobs dealing with heavy equipment or machinery must be clear the role is a safety sensitive position and for that reason they should notify their employer if using medical marijuana.
“It behooves the employer to make the point about safety sensitive positions and that may include an obligation to disclose any impairment employees may be in,” he says.
Individuals may come forward and indicate they require a change in their work environment to allow them to ingest marijuana, which may include smoking it during their work shift. In such a situation, employers can’t say no, even though the legislation may be clear on the prohibition on smoking in the workplace.
“Your immediate response can’t be ‘no’ because the list of medical conditions that might require medical marijuana would be linked into human rights protected disabilities,” says Piccolo. “So under the Human Rights Code we have an obligation to accommodate individuals who have disability-related needs.”
But what if an employee doesn’t disclose they are using medical marijuana or doesn’t request accommodation?
Authorized users don’t have to tell their employers they are taking the drug. In those circumstances it may come to an employer’s attention indirectly.
In Wilson v. Transparent Glazing Systems Ltd. there were performance related issues with the employee, Gregory Wilson, when he became aggressive and it came to the employer’s attention he was taking medical marijuana.
Transparent Glazing fired Wilson for performance-related issues, however the termination was found to be inappropriate by the British Columbia Human Rights Tribunal. The tribunal said the employer had an obligation to ask the individual whether the medication he was taking was affecting his ability to perform his job.
Piccolo encourages employers to have a conversation about whether the individual has to smoke the marijuana or if there is another form they can use to ingest the drug.
“If the alternative is to eat it or vaporize it then we don’t have to grant the right to smoke it in the environment,” she says.
University of Windsor law professor William Bogart says in most cases employers and employees can agree on what accommodation is required.
“Accommodation has to be to the point of undue burden. If someone can legitimately show they are using it for medicinal purposes and if the doctor is prescribing it says it has to be taken on a regular basis and during working hours then it should be treated like any other prescribed drug,” says Bogart.
“There would be other drugs beside medical marijuana that could cause drowsiness and I would say employers would require employees to disclose that in the same way. We’re worried about marijuana being an illegal drug but it’s not illegal if done for medical purposes,” he says.
Lynn Korbak, general counsel and corporate secretary with Morneau Shepell agrees.
“As with any accommodation, the most success can be had when the employer and employee are able to have an open dialogue together, as well as with medical advisers, to understand the employee's particular situation and needs,” she says. “For example, if an employer is concerned about a potential impairment effect of marijuana, they should be encouraged to ask the questions to the employee and medical advisers to better understand the impact to the particular individual as it applies to her job duties.”
Accommodation also doesn’t have to be as the employee requests. A case with the RCMP in New Brunswick involved an officer who held a licence to consume medical marijuana for post-traumatic stress disorder. The RCMP took the position it would allow Cpl. Ronald Francis to smoke it, however he felt he had the right to do so in his uniform and in public. The RCMP objected and his uniform was seized and a statement released indicating:
“Any member on a mind-altering drug — such as marijuana, OxyContin, Dilaudid — is not permitted to perform operational duties, including carrying a firearm or operating a police vehicle, as this could pose a risk to themselves, a co-worker or the public.”
Bogart says in Francis’ case, the RCMP was willing to accommodate him, recognizing he might have to smoke on the job.
“I’m big on accommodation for disabilities,” he says. “They understood it was for medicinal purposes and needed to be done while on duty but not while in uniform. It would send a completely wrong message for kids and the public.”
If employees are in “safety sensitive” positions they should tell their employers about their use of medical marijuana. If an employee doesn’t require any specific accommodation, Piccolo says they don’t have an obligation to tell their employer.
“The question is: does the course of treatment put you in a position where you are impaired on the job? You can ask the question and ask for a note from their doctor to confirm they are under a doctor’s care and not impaired while on the job,” says Beeho.
And how long does an employer have to accommodate?
“It’s a very vexing dilemma for employers,” says Beeho, noting if an employer accommodates an employee for two years but decides it no longer wants to the employee can easily challenge the decision.