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WENDY ELLEN INC.

January 2017 Newsletter
In This Issue
  • Thanks for Joining Us!
  • Marijuana in the Workplace
  • Case Study: Examining the Intricacies of Medical Marijuana
  • Considering the Impacts of Medical Marijuana
  • Quick Reference: Developing Guidelines and Policies Surrounding Medical Marijuana
  • Quick Reference: How Far Does the Duty to Accommodate Employees Using Medical Marijuana Extend?
  • Quick Reference: Requesting Information
  • Coach’s Corner: Preparation is Key
January 2017
Volume 4, Number 1

Thanks for Joining Us!

A very Happy New Year to all of you! We hope you greatly enjoyed the holiday season and are ready to tackle 2017 with renewed energy and vigour.

This month we are discussing a topic that is becoming more prevalent in the workplace, and one that still has many questions and uncertainties: the use of medical marijuana in the workplace.

The use of marijuana in Canada without a valid medical prescription remains illegal under the Controlled Drugs and Substances Act. However, prior to changes in 2014 to the Marijuana for Medical Purposes Regulations, users of medical marijuana had to obtain a license from Health Canada. Since April 2014, the Regulations have granted doctors the ability to issue prescriptions for medical marijuana to their patients. As a result of this new ease of access, Health Canada has predicted that the number of legal marijuana users in Canada could increase by as many as 450,000 in the next decade. (Source: RudnerMacdonald.com)

As a result, employers must take steps to educate themselves on the topic, ensure their organizations are proactive in developing policies, and understand their role in accommodation.
Keep reading for more learning!


Marijuana in the Workplace

As an employer, you know that providing a safe work environment for your employees is paramount. And, as we discussed in our November 2016 newsletter, you also understand that in terms of accommodating employees with disabilities, you must do so to the point of undue hardship. This obligation does not change if the disability involves the use of medical marijuana.

In this context then, the approach to the use of medical marijuana in the workplace really shouldn’t be any different. The accommodation process must be undertaken as if it were any other accommodation issue. But the stigma and the “politics” of marijuana can make this process confusing from an employer’s perspective.

Any time a request for medical marijuana use is received, it should never be rejected as a matter of course, rather, it triggers a request for accommodation and must be treated as such. It is critical therefore, that you have an accommodation plan in place that encompasses medical marijuana. Educate yourself regarding medicinal marijuana to ensure you are not predisposed to answer any particular way based upon pre-existing notions of marijuana that are likely to be entirely inaccurate.

In other words, the use of medical marijuana by an employee should be viewed in the same way as any other doctor-prescribed medication.

As always, in determining whether reasonable accommodation for an employee is possible in the workplace, it is crucial that you obtain as much information about the employee’s restrictions and limitations as possible. This includes determining the impact on the employee of consuming medical marijuana and their ability to carry out their duties. As with any disability, don't not make assumptions about the employee’s condition or abilities simply based on the fact that the employee’s condition is being managed through the use of medical marijuana. You should never assume that an employee using medical marijuana is automatically impaired and incapable of performing certain tasks.

Case Study: Examining the Intricacies of Medical Marijuana


The case law is and will continue to evolve, confirming that marijuana in the workplace can lead to contentious issues. These issues could involve elements of discipline and accommodation, particularly if the circumstance of “addiction” collides with misconduct on the job.

An example of this is the case of Ontario Nurses’ Association and London Health Science Centre (Grievance of BS). Here, the arbitrator had to address the interplay between accommodation and addiction (which is a disability). The employee in this case, a nurse, was found to have stolen narcotics for her own personal use, falsified records and attended work while impaired. She was terminated for her conduct. But the evidence led at the hearing confirmed that she suffered from a substance addiction. The analysis centered around whether or not her conduct was “causally connected” to her addiction, that is, did her disability lead to her conduct. Ultimately, the arbitrator found that it did. The result was that the employer was obligated to accommodate the disability without undue hardship.

Compare this to the case of French v. Selkin Logging (2015, British Columbia Human Rights Tribunal), where the employee claimed that Selkin Logging discriminated against him on the ground of physical disability by preventing him from taking time off to attend medical appointments and terminating his employment when it should have accommodated his marijuana use on the job. The tribunal accepted that the employee was disabled (which triggered the obligation to accommodate), but found that because his marijuana use was not authorized by a doctor and the employee had not informed the employer, the employer’s zero tolerance policy was not unreasonable. In other words, the employee was under an obligation to ensure that the employer knew that marijuana use was medically supported. Since it was not, he couldn’t claim using marijuana at work constituted a proper accommodation.

And finally, in Calgary (City) v. Canadian Union of Public Employees (CUPE 37) (2015, Alberta Grievance Arbitration Award), a City employee, who was prescribed marijuana for medical purposes, was removed from his position and placed in a non-safety sensitive position. Subsequently, the union filed a grievance demanding that the employee be returned to his previous position. The arbitration board found that the City had failed to prove that the employee had substance abuse issues or that he had been impaired while on duty. As a result, the employee was reinstated, but at its heart was the failure of the employer to make a proper assessment of the employee, his duties and the impact of the employee’s marijuana use.

(Source: www.lexology.com)

Considering the Impacts of Medical Marijuana


With the relatively recent advent of legitimately recognized medical marijuana use, the situation for employers is now further complicated. On the one hand, where an employee claims medical need for marijuana, the request will have to be treated in the same manner as any other request for medical accommodation and as an employer you must have policies in place permitting the medical use of marijuana in the workplace where supported by appropriate medical evidence, as a form of accommodation. On the other hand, as an employer you continue to have the right to prohibit impairment on the job, particularly in safety-sensitive positions. Some guidelines for working through. Some aspects that need careful consideration include:

Accommodation An employee's need to consume medical marijuana triggers an employer's statutory obligations. Employees may be prescribed medical marijuana to cope with a number of conditions such as arthritis, cancer, chronic pain, or sleeping disorders, as well as PTSD. As an employer you have a duty to accommodate employees' disabilities to the point of "undue hardship". There are three different factors when determining whether or not the request for accommodation meets the threshold of undue hardship to the employer. First, the court looks to the cost of accommodation. Second, the court looks to whether or not there is any outside funding to help subsidize the costs of accommodation. Third, and perhaps most pertinent to medical marijuana, the court looks to any health and safety concerns the accommodation may pose

Investigation Remain cognizant of your obligations under the Occupational Health and Safety Act. Don’t make assumptions about an employee’s ability to carry out their job functions safely, determine whether or not they can.

Disclosure Ensure your policies and procedures are updated to include a requirement to disclose use of marijuana. If an employee is using marijuana in the workplace, but has not disclosed it to you, you can move to discipline or terminate. Your obligation to accommodate someone’s marijuana use is only triggered once they disclose the use is for medicinal purposes. Only then are Human Rights protections engaged. Even when an employee says it is prescribed, ask for proof – you are entitled to it.

Ask the Right Questions Employees have a responsibility to discuss their needs with the employer; they are in fact part of the accommodation process and also have a duty to participate. Asking them the right questions will help determine how your organization can address their use of medical marijuana without causing undue hardship on the organization as a whole. Despite the fact that marijuana may manage some medical conditions, you are permitted to have frank and fair discussions with the employee about what they can and cannot do. Should an employee approach your organization about using medical marijuana, treat his or her disclosure confidentially, but ask the following questions:

* Do they have proof of their prescription (i.e., purchase history from a licensed provider)?
* When will they need to take the product?
* How much of the product will they need to take?
* Will they be taking it at work?
* Where will they take it?
* How will they take it?
* How long do they anticipate needing to take it?

Remember, employers have rights too. Without getting into the specific diagnosis, obtain information and discuss the employee’s needs. Tailor the accommodation to your workplace and the employee.
Accommodating medical marijuana use in the workplace requires extensive knowledge and expertise.
Contact Wendy Ellen Inc. for assistance today!

Quick Reference: Developing Guidelines and Policies Surrounding Medical Marijuana


With the recent expansion of legislation permitting the production, sale and use of marijuana for medical purposes, we strongly recommend that you begin to think about crafting a policy which addresses medical marijuana use in your workplace.

Where will the employee ingest their prescribed marijuana? Consider that:

* If you have a designated smoking area on your premises, will you require regular smokers ingesting medical marijuana smoke if all smokers are required to smoke in the same area?
* Is it appropriate to make them smoke in the presence of others, so that their disability is no longer a private matter?
* If no smoking is required anywhere on your premises, how will you treat an employee who is smoking medical marijuana and may have a physical disability?
* Should a designated room be provided on the premises in which medical marijuana users can smoke on a private and confidential basis?

What rules will apply to the employee?

*What documentation will be required from the employee’s treating healthcare professional?
*Should he or she be required to cease working and report to a manager in the event of feeling unwell after medicating?
*Should he or she be required to refrain from operating a motor vehicle or machinery for work purposes after medicating?

What steps will be taken by the employer in order to ensure that the needs of the employee are being met, without compromising the employee’s ability to perform his or her job, or the safety of the workplace?

Who at the company must know about and approve an employee’s use of medical marijuana in the workplace?

What steps will be taken in order to otherwise keep that information confidential?

The important thing for any employer is to be aware of the fact that it is best to have a policy in place in advance of these questions being raised by an employee seeking to medicate at work.



Quick Reference: 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. Anti-smoking laws apply to smoking marijuana in the same way they do to regular cigarettes;

* 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, accommodated work for the employee, as would be required for any other disabled employee with a medical drug prescription.





Quick Reference: Requesting Information


While many employers are reluctant to request information from the employee due to concerns about privacy rights, there is nothing wrong with requesting documentation that is reasonably required in order to assess the need for accommodation and the options that might be available.

As part of the inquiry, employers should require not only medical proof of prescription but also sufficient medical indication that the employee actually has to ingest marijuana during working hours, together with sufficiently detailed information regarding the frequency, volume and method of ingestion relating to such prescribed medical use.

Questions may include:

* How much marijuana the employee is required to use?
* How and when does the employee dose?
* What parts of the employee’s job may be affected by that consumption
* How is he or she cognitively or otherwise impaired by the dose, and how it impacts their duties?
* The physician's opinion of whether or not an employee can still, say, operate heavy equipment.











About Wendy Ellen Inc.

Wendy Ellen Inc. specializes in providing human resource and benefits management skills to small to mid-sized companies on an as-needed basis. From recruitment, Human Resource policy development and legislative compliance, employee retention and engagement, individual advisor/coaching, succession planning to employee development and performance, Wendy Ellen Inc. will help you protect your most valuable resource, your people.

Contact Us
http://www.wendyelleninc.ca
wendy@wendyelleninc.ca
Contact Wendy Ellen Inc. today to discuss your human resources needs.

403-815-4336



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