Medical Marijuana in the Workplace: The More Things Change…

change graphic.oct 2015Change can be scary.

The first question on most people’s minds when change is on the horizon is:

    What will this mean for me?

As an employer, workplace change can be doubly overwhelming, since you need to consider not only your own interests, but also those of your employees.

And when that change is imposed from outside your organization – by lawmakers, for example – the uncertainty can be that much greater.

One recent, high profile example of outside forces driving (potential) workplace transformation in Canada is the new set of federal regulations respecting medical marijuana that came into effect last year.

By all accounts, it appears that the Marihuana for Medical Purposes Regulations (which allow users to obtain medical marijuana with a doctor’s prescription, rather than a Health Canada licence) have led to an increased use of medical marijuana to treat a variety of conditions – an increase that could have implications for employers and employees alike.

The question is: How much change will these new laws actually require in the workplace? In our view, if you are already aware of and complying with your (and your employees’) employment law rights and obligations…not much.

Existing laws in the areas of human rights and workplace health and safety apply to the use of medical marijuana the same way they do to any disabled employee who has been prescribed medication that could affect her work. Just as with many other employment-related issues, employers will need to engage in a balancing act, staying mindful of the needs of every person potentially affected by an employee’s use of this drug.

To help you manage any change-related anxiety you may be feeling, we offer some workplace best practices you should be following, regardless of whether your workers use medical marijuana:

1. Respect and accommodate.

The law (and business ethics) requires that you respect and accommodate your employees’ human rights and related workplace needs.

Under human rights legislation, an employee taking prescribed medical marijuana falls within the protected ground of disability and is entitled to workplace accommodation, within certain limits. You may discriminate against an employee in connection with her drug use IF you can show that the discrimination is due to a “bona fide occupational requirement” (a BFOR), or that accommodating the employee’s needs would cause you “undue hardship”.

What constitutes accommodation, BFOR and undue hardship will depend on the circumstances of each particular fact scenario, and each of these legal concepts has been the subject of various human rights rulings across Canada. Considerations in the medical marijuana context could include the financial cost to the employer of accommodation, and workplace health and safety concerns (see below for more on this).

While there has been little to no judicial treatment in Canada of issues relating to medical marijuana in the workplace, a BC user of this drug was recently unsuccessful in his human rights claim of workplace discrimination (see French v. Selkin Logging). In considering the employee’s complaint, the BC Human Rights Tribunal concluded that the employer’s “zero tolerance” policy regarding on-the-job drug use was a BFOR in the circumstances of that case, where workplace safety was of particular concern (the employee worked as a heavy equipment operator for a logging company).

2. Adopt clear, comprehensive policies and practices.

If you haven’t previously contemplated how you might accommodate an employee taking prescription medication that could impact or impair his performance, now’s the time to do so, and to put it in writing. Accommodation options may include providing the employee with a leave of absence, or alternative forms of work that do not raise safety concerns.

If you already have policies and practices regarding workplace-related drug use, they should cover the use of any prescription drug with the potential to impair. Since marijuana is not the only medication that can have an impairing effect, it’s important that you not single out medical marijuana for special treatment, as you will run the risk of violating the human rights of employees using this drug.

3. Communicate and educate.

It’s important for you and your employees to understand your legal obligations to ensure workplace safety. British Columbia occupational health and safety rules apply to both employers and workers, and there is a general shared duty that all work be carried out without undue risk of injury. This means that an employee does not have the right to be impaired at work where this may endanger his or someone else’s safety – he must use his medication safely, and/or tell you if a drug he is taking poses a workplace safety risk.

We encourage you to communicate directly, transparently, and collaboratively with your workers about this shared responsibility to keep the workplace safe. This may include offering in-house lunch and learns, and/or posting your policies and an FAQ on a company-wide intranet. Such open communication will be particularly important if yours is a safety-sensitive work environment.

And, as always…when in doubt, consult your employment lawyer!

Have questions about your workplace policies or practices? Contact us!

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