While Health Canada expects over 300,000 Canadians to be authorized to possess medical cannabis by 2024, experts are urging employers to look closely at their existing drug policies
With the increase in medical use, Canadian employers, and employees, are slowly learning their rights in the new legal landscape.
“Individuals have the right to equal treatment … without discrimination on the grounds of disability,” said Jan Robinson, managing principal at human resources firm Morneau Shepell.
Legal group McMillan said taboos around cannabis could be eliminated by employers treating the substance as any other prescription drug. But, as with any medical prescription, the right to possess doesn’t give the employee the right to use it in the workplace.
British Columbia Tourism and Hospitality Human Resources site Go2HR stated employees that use medical cannabis should be accommodated in the same way as any other employee who has been prescribed medication, but employees are not entitled to be impaired or violate existing anti-smoking regulations.
While employers have a duty to accommodate their employees’ medical issues under the Canadian Human Rights Act, it comes with an equal obligation to maintain a safe workplace.
A July decision by the BC Human Rights Tribunal laid out some of the limitations employers have in accommodating cannabis use.
Selkin Logging terminated employee John French in 2014 due to what they said were safety issues related to his cannabis use. Selkin has a zero tolerance policy on cannabis use for its employees.
French claimed the company violated his human rights by refusing to allow the logging contractor to use marijuana while on the job to treat pain symptoms after surviving cancer treatment.
The Tribunal ultimately sided with Selkin, as French was not authorized for possession by Health Canada, despite claims he was using the drug under his physician’s advice.
The situation could have been different had French had proper documentation, but employers still have limitations in the length they are expected to go to accommodate employees using medical cannabis.
Employment lawyer Natalie MacDonald said if financial burdens to accommodate employees are too high or job site safety is compromised too much employers may not be obligated to allow medical cannabis use.
“A small organization that has to incur serious financial hardship as a result of trying to accommodate an employee may cross the test of undue hardship,” MacDonald said.
The Health Canada website stated that using cannabis can impair concentration, thinking and decision making as well as reaction time and coordination, meaning that workers in high risk occupations or those that operate heavy machinery may be unable to use cannabis at work in their normal duties.
McMillan recommended employers request medical documentation from their employees that state they are able to safely continue their duties while taking medication.
“If the inquiry discloses a meaningful impairment in the employee’s capacity to carry out their job, then the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment,” McMillan’s website stated.
MacDonald said employers then may be obligated to find other options, such as a leave of absence.
“In some cases, it may be that the employee needs to be provided with alternative forms of work that don’t attract any particular safety concerns,” she said.