No doubt there’s a significant haze of confusion and consternation surrounding medical marijuana in Canada today. With certain legalization on the near sunny-ways-lit horizon, should we expect the return of smoking in offices, with nattily attired bosses blithely waving their Pall Mall menthols in the faces of cough-suppressing subordinates? Not likely.
Regardless, there’s no question that the new regulations surrounding medical marijuana have created unique and unprecedented challenges for employers.
Herewith, the straight goods:
- The possession of marijuana is unlawful under the Controlled Drugs and Substances Act, but its use for medical purposes is permitted under the Regulations to the Act, and has been since 2001.
- Provincial and federal human rights legislation says employees who use medical marijuana are to be accommodated in the same way as any other disabled employee who’s been prescribed medication is. Section 5.1 of the Ontario Human Rights Code mandates that an individual has the right to equal treatment with respect to their employment without discrimination on the grounds of “disability.”
- A prescription for medical marijuana does not entitle an employee to be impaired at work, to compromise safety, or to engage in unexcused absences or late arrivals. It also doesn’t entitle him to smoke in the workplace.
- Whatever its state of legality, marijuana should be treated like alcohol by employers. In other words, they have the right to both prohibit its use during work hours, and an employee’s attendance at work while impaired. And workers in high-risk occupations or who operate heavy machinery may need to restrict cannabis use to be able to function safely.
- If job performance suffers, employers can intervene. At this point, the employer’s “accommodation” might morph into other territory, such as allowing the employee a leave of absence while undergoing marijuana treatment, or providing him with alternative forms of work.
- Employers should consider asking medical marijuana advocates for details of their condition and prescription documentation. They might even request a medical review or an Independent Medical Examination (IME).
- If allowing an employee to use medicinal cannabis creates serious financial hardship for the company, employers may be excused from allowing medical cannabis use.
- The last Canadian Alcohol and Drug Use Monitoring Survey, published by Health Canada in 2012, pegged the estimated number of medical marijuana users in the country at about 420,000.
- The Canadian government has announced its intention to legalize the substance for non-medical use in spring 2017.
- Employers who wish to introduce drug testing to the workplace must demonstrate reasonable cause and evidence of the employee’s impairment for doing so.
Proactive employers should update their policies around both the medical and non-medical use of marijuana in the workplace before they’re pushed into doing so. Ideally, the production of these revised documents will include the input of unions (where applicable), and workplace health and safety committees, and will culminate in a spirited exchange of high fives.