Canadian Employment Law Today

October 30, 2013 CASE IN POINT: ACCOMMODATION Are you prepared for medical marijuana in the workplace? Increase in medical marijuana licences making it more likely employers will have to deal with employees who have it BACKGROUND A growing operation THE FEDERAL government has embraced the idea of marijuana for medical use and, after beginning the practice of granting licences to Canadians who need it for painkilling and other medically related purposes a few years ago, it has significantly increased the number of people allowed to use it. Ultimately, this means employers are more likely to encounter employees using medical marijuana. So how should employers handle employees who are legally allowed to use it, particularly in workplaces with anti-drug policies and safety sensitive positions? | BY TIM MITCHELL | IN 2012, the number of medical marijuana licences issued in Canada more than doubled. In January 2012, 13,781 Canadians legally possessed medical marijuana licences, and by December, the number had increased to 28,115, according to Health Canada. Upcoming changes to the way medical marijuana is approved and administered suggest this upward trend in medical marijuana licences will continue its course. This increase in licences and potential for greater use of medical marijuana by employees in turn sharpens the focus for what this may mean for Canadian employers. Some immediate questions that will naturally arise for employers are: How does an employer deal with a medical marijuana licensed employee occupying a safety sensitive role? Are employees with medical marijuana licences exempt from drug testing? If an employee with a licence says she needs to use marijuana at the workplace, how do does an employer address this? In Canada, medical marijuana is 4 controlled through the Marihuana Medical Access Regulation (MMAR), which flows from the Controlled Drugs and Substances Act established by Health Canada. The MMAR came into force in July 2001 and originally licensed marijuana use for end-of-life care and severe pain, including pain associated with cancer or HIV/AIDS. The MMAR permits the possession and "personal use production" of marijuana by persons who can establish a medical need after consultation with their medical practitioner. Notwithstanding these humble beginnings, the MMAR is changing. Effective March 31, 2014, the "Marihuana for Medical Purposes Regulations" (MMPR) comes into effect. One of the biggest changes is that licences will no longer be granted by Health Canada, as they are now — instead, the physicians who previously occupied the role of sponsor confirming medical conditions fit for a licence, will now be transformed into gatekeepers tasked with prescribing medical marijuana and effectively licensing a person to use it. In 2008, the use of medical marijuana in the Canadian workplace was addressed to some extent by the British Columbia Human Rights Tribunal in Wilson v. Transparent Glazing Systems (No. 4). An employee with a licence to use was terminated after his employer received a third party complaint about his being impaired at the worksite. The tribunal found the employer failed to make necessary inquiries prior to termination, considering the employer knew the employee had a disability and was taking medication. Notwithstanding the unfavourable result for the employer, minimal damages were awarded to the employee because, as the tribunal found, the employee would have been justly terminated nonetheless due to poor performance. In a more recent case, the Alberta Labour Relations Board was required to decide whether a union had failed its duty to fairly represent one of its unionized employees who was dismissed for having marijuana in his camp room at the worksite. The employee sought to grieve the dismissal, alleging he had a valid medical marijuana licence, and the union was prepared to discuss the issue of accommodation with the employer. However, when the employee was unable to produce the licence, the union discontinued the grievance. The Alberta Labour Relations Board, unsurprisingly dismissed the duty of fair representation complaint on account that the employee failed to cooperate or provide the Union with the proof it needed to pursue the grievance — the medical Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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