The Canadian government has announced the legalization of marijuana for non-medical use. The rapid and significant changes to the legal status of marijuana raise new questions and challenges for Canadian employers. Here, we provide a general overview of the most important things employers should know about marijuana in the workplace:
WHAT IS THE CURRENT LEGAL STATUS OF MARIJUANA IN CANADA?
The possession, production and trafficking of marijuana are prohibited under the Controlled Drugs and Substances Act, except where authorized by exemptions or regulations, such as those for medical marijuana. The Government of Canada has announced the legalization of recreational use of marijuana, effective on October 17, 2018.
DOES LEGALIZATION OF MARIJUANA MEAN EMPLOYEES CAN BE IMPAIRED AT WORK?
No. Employers will have the right to set rules for non-medical use of marijuana in the workplace in much the same way that employers currently set rules for use of alcohol. In particular, employers may prohibit the use of marijuana at work or during working hours and may also prohibit employees from attending work while impaired. Workplace rules regarding non-medical use of marijuana may be enforced through the application of the employer’s progressive discipline policy.
DOES THE DUTY TO ACCOMMODATE EXTEND TO MEDICAL MARIJUANA?
Yes. The duty to accommodate, as required by provincial and federal human rights legislation, extends to disabled employees who use medical marijuana. These employees are to be accommodated in the same way as an employer accommodates any other disabled employee who has been prescribed medication. Accommodation is also required for employees who may have an addiction disability. However, the duty to accommodate is not without limits.
HOW FAR DOES THE DUTY TO ACCOMMODATE EMPLOYEES USING MEDICAL MARIJUANA EXTEND?
Human rights legislation requires that a disabled employee be accommodated. What, precisely, does this mean in the context of medical marijuana?
- A prescription for medical marijuana does not entitle an employee to be impaired at work;
- A prescription for medical marijuana does not entitle an employee to compromise his or her safety, or the safety of others;
- A prescription for medical marijuana does not entitle an employee to smoke in the workplace;
- A prescription for medical marijuana does not entitle an employee to unexcused absences or late arrivals;
- The employer is, however, required to attempt to find suitable workplace accommodation for disabled employees who have a prescription for medical marijuana use, just as would be required for any other disabled employee with a medical drug prescription.
WHAT CAN EMPLOYERS DO TO MEET THEIR OBLIGATIONS?
Employers may need to revisit workplace policies that address drug and alcohol use, with attention to two competing obligations: on the one hand, employers have a duty to accommodate disabled employees, and medical marijuana is used to treat medical conditions that can constitute a “disability”. On the other hand, employers must take every reasonable precaution to ensure the safety of their workplaces and they continue to have the right to prohibit impairment on the job. Assessment of impairment at work may prove to be the most difficult aspect of designing and implementing policies regarding use of marijuana, as testing for drug and alcohol use remains one of the most contentious contemporary issues in Canadian workplace law.
Employers faced with an accommodation request may wish to consider providing similar accommodation measures it does for other disabled employees. These measures may include moving the employee out of a safety-sensitive position, providing more frequent breaks, implementing alternative scheduling; or altering the employee’s duties, etc. As with other accommodated employees, an employer may wish to request medical information from the employee’s doctor, or seek the assistance of an independent medical examiner where there are questions about the employee’s fitness for duty, and what will be appropriate accommodation.
Three recent cases regarding medical use of marijuana shed light on how employers should strike the appropriate balance between these competing obligations.
In French v. Selkin Lodging, 2015 BCHRT 101, the complainant, a cancer survivor, often smoked marijuana several times throughout the workday to manage chronic joint pain. Although a doctor had told the complainant he could use marijuana if it worked, the complainant did not have any formal documentation permitting him to lawfully possess and use marijuana for medical purposes. Prompted by safety concerns, the employer told the complainant he could not continue working if he continued smoking at work.
Although there was no evidence that marijuana use had ever affected the complainant’s performance, the British Columbia Human Rights Tribunal concluded that the employer’s “zero-tolerance policy” was a bona fide occupational requirement. The Tribunal found that the dismissal was not discriminatory.
An Alberta arbitration board came to the opposite conclusion in Calgary (City) v. Canadian Union of Public Employees, 2015 CanLII 61756 (AB GAA). In this case, the grievor was responsible for operating a grader on city streets. To address pain caused by a back injury, he obtained a permit for medical marijuana and began using small amounts at night before going to bed. After the grievor underwent an Independent Medical Examination (“IME”), the employer decided the grievor could no longer occupy a safety-sensitive position.
The board of arbitration found that the IME was based on inaccurate information from the employer. Most notably, there was no evidence of substance abuse or impairment at work. Accordingly, the employer was ordered to reinstate the grievor to his former position.
In M obo another v. V Gymnastics Club, 2016 BCHRT 169, a gymnastics coach claimed that her employer had discriminated against her on the basis of physical and mental disability by suspending her employment when she disclosed she used medical marijuana to manage the symptoms of her gastric conditions. The complainant said she was never “stoned” at work and that there was no discernible impact of her marijuana use at the workplace. The employer said it was entitled to demand complete abstention from consuming marijuana, both at work and away. It described the position of gymnastics coach as being safety-sensitive, saying that gymnastics presents a very real risk of injury and that most of the individuals with whom the complainant worked were children under the age of 19. The British Columbia Human Rights Tribunal declined to dismiss the complaint on a preliminary basis, concluding that a full hearing was necessary to determine whether the role of gymnastics coach was indeed a safety-sensitive position and whether the complainant had been accommodated to the point of undue hardship. A full hearing on the merits of this case has not yet been held.
In light of this conflicting case law, employers may wish to seek legal guidance on whether – and how – to accommodate an employee who has been prescribed medical marijuana.
WHAT IS THE FUTURE OF MARIJUANA IN THE WORKPLACE?
The changes to the legal status of marijuana have created unique and unprecedented challenges for employers. It may seem daunting; however, employers need not change their practices drastically. To accommodate an employee who uses medical marijuana, an employer can start by mirroring the practices it has developed for accommodating any employee who has been prescribed drugs that have the potential to impact or impair his or her work. To limit the use of non-medical marijuana at work, an employer can look to existing practices related to use of alcohol, other prescription drugs or cigarettes.
Nevertheless, there will be some changes. It is likely that zero tolerance workplace policies for marijuana use or possession will become unenforceable. We may also see employees begin to request or negotiate for coverage under health and benefits plans for medical marijuana prescriptions.
With time, however, many issues and uncertainties surrounding the use of marijuana will be litigated. We will be provided with lessons from the Courts and tribunals as to how an employer can best ensure that it fulfills its human rights obligations, while also ensuring the workplace remains safe and productive.
This article was provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.