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.
|
|
|
|
|
|
