Displayed with permission from Financial Post
As marijuana emerges as a mainstream treatment, employers will need to figure out how to deal with the use of medical pot in the workplace.
As far as the law goes, there’s no need for employers to overhaul existing policies – assuming, of course, an employer has already put rules in place that deal with the use of other prescription drugs that might impair mental capacity. From a legal perspective, all that’s really happening is that medical marijuana is taking its place along side pain killers and other powerful drugs doctors have been legally prescribing for years.
“People sometimes need to take, for valid reasons, things that impair their judgment, acuity and performance,” says George Waggott, co-chair of the employment and labour group at national law firm McMillan LLP.
The novel thing about medical marijuana is that for a lot of people, pot is first and foremost a recreational drug. TV shows like Entourage and Weeds make light of the myriad of ways in which some people secure dubious medical authorization to use pot. But that’s just Hollywood looking for a punchline.
In the real world, the potentially blurred reality that comes with the bona fide use of medical pot is no laughing matter for employers. Employers have a duty to accommodate the needs of employees who have medical conditions or disabilities, and that includes anyone with a doctor’s prescription for pot. At the same time, employers also have a duty to keep there workplaces safe. That means a doctor’s note is not carte-blanche for an employee to smoke pot whenever and wherever they want while at work.
Employees have never had a right to work while they’re knowingly impaired or unable to function because they’ve been taking substances, Waggott says. “That doesn’t change. The issue is that with the acceptance, legally and socially, of medical marijuana, what we’re most likely to see is an increase in prominence for the issue.”
In Canada, federal regulators licence growers to produce medical grade marijuana and doctors can prescribe it for medical purposes. Last June, the Supreme Court of Canada broadened legal access to pot for medical reasons when it tossed out federal rules that had required medical marijuana to be dispensed only in its dried or smokeable form.
“Based on the new legislation, medical marijuana should be treated like any other prescription medication,” says Jan Robinson, a managing principal with human resources consulting firm Morneau Shepell Ltd. “The use of cannabis as a physician approved medicine has been deemed a constitutional right by Canada’s top court, so employers do need to ensure that their policies do not infringe on that right.”
The duty to accommodate bona fide medical pot users has limits. Generally speaking, an employer is not obliged to accommodate an employee beyond the point of undue hardship. Neither would an employer be forced to do something that threatens the safety of others, explains Natalie MacDonald, co-founder of boutique employment law firm Rudner MacDonald LLP. “Second-hand smoke, for example, might pose a hazard to other employees,” MacDonald says. “Maybe the employer has to let the employee go outside to smoke.”
There’s also the issue of safety-sensitive equipment. If an employee can’t drive or operate heavy machinery because of the medication, the duty to accommodate calls on the employer to give that person another role within the company, MacDonald says. “Even prescription drugs interfere with ability to concentrate and stay awake. In that respect, the employer may have to consider an alternative form of work.”
As reasonable as this sounds, this is a world of fuzzy judgment calls, rather than clearly delineated lines. There might be debate on what “impaired” actually means when it comes to pot. Medical marijuana isn’t supposed to transform a day at work into a Grateful Dead concert. It’s supposed to smooth out the symptoms that would otherwise make working impossible. In this new world of medical pot use, employers and employees will need to have some frank discussions about what is fair and safe.
Some employers are able to insist on zero tolerance for specific jobs. You could probably draw up your own quick list of jobs that you’d put on that list, such as pilots, brain surgeons and heavy equipment operators.
In a B.C. Human Rights case released in July, the tribunal found that an employer was not out of bounds when it dismissed a heavy equipment operator at a logging operation who’d been using pot. The operator argued he needed the pot because he was a cancer patient. The tribunal found the employee had no doctor’s note or marijuana card. Absent such proof of legitimate use, the employer had no duty to accommodate. “It was incumbent upon him to have already obtained the necessary legal and medical authorization to obtain and use marijuana for medical purposes,” the tribunal concluded.