Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: ACCOMMODATION Treat medical marijuana similar to other prescriptions ...continued from page 4 marijuana licence. While what certainly is merely the beginning, these two cases serve as useful, if not basic, lessons when it comes to medical marijuana in the workplace — an employer will have a duty to accommodate in certain circumstances and an employee will need to provide proof of a licence to use medical marijuana. Duty to accommodate What else is there for the employer to know about medical marijuana at work? First, employers can request to view the employee's actual medical marijuana licence. The licence itself is a piece of government-issued identification with the holder's photograph. The time the employee submits the required application forms to Health Canada to the receipt of the actual licence is approximately 10-12 weeks. As a result, an employer's request for a proof of licence could be met with "I've applied but the licence is in the mail." If confronted with this issue, employers should request a statement from the physician who signed the application forms on behalf of the employee and verify when the licence application was made. Second, employers can place limits and expectations on employees as it relates to medical marijuana. These limits and expectations may include: not attending work impaired; not using medical marijuana at, or immediately prior to entering, the workplace; not sharing a medical marijuana prescription with other employees; and not tolerating unexcused incidents of absence or lateness. Having a medical marijuana licence does not excuse employees from continuing to carry out their duties of employment in an acceptable fashion. In working with employees who present a medical marijuana licence, employers should treat licensed employees like any other that has a prescription medication potentially affecting her ability to carry out her duties of employment. Having a medical marijuana licence is not a licence for impairment in the workplace. The regular duty to accommodate applies. Depending on the nature of an employee's position, an employer's course of action will vary depending on whether the employee is in a safety sensitive position or not. For employees in safety sensitive positions, the employer must make further inquiries of the employee to determine if the employee can be accommodated. It may be prudent to place an employee on a paid administrative suspension for medical reasons pending completion of an inquiry or place the employee on alternate duties which are not safety sensitive. Nevertheless, it is always important to remember that for employees in both safety sensitive and non-safety sensitive positions, the employer may be in a position to request a medical review or an Independent Medical Examination (IME) to see if the employee's choice of pain medication can be accommodated and, if so, whether medical marijuana is a reasonable form of accommodation compared to other options. Although, increased medical marijuana in the workplace poses new challenges for employers, proactive steps can be taken to get ahead of the curve. The starting place for employers should be re-examining workplace drug and alcohol policies to ensure proper inclusion of medical marijuana. Policy wording should: be broad or specific enough to include medical marijuana; explain acceptable use of prescription and non-prescription medication; and state when reporting of prescription and non-prescription medication is required. Most importantly, a drug and alcohol policy should be clear that the consequence of failing to report the use of medical marijuana can result in disciplinary action, up to and including termination of employment. While medical marijuana is a new and sometimes controversial issue, employers need to remember it is in most ways no different than other kind of prescription medication. Just as it is unacceptable for an employee to be impaired on the job by taking sleeping pills or pain killers, impairment due to licensed medical marijuana is no different and should not be tolerated. Employers in Canada can expect medical marijuana in the workplace to become a more prominent issue. Physicians will continue to become more comfortable with authorizing and prescribing marijuana for medical reasons, and the number of employees with licences under the MMAR/MMPR should continue to rise. Employers should also be alert to the possibility of requests by employees for coverage of medical marijuana through health benefit plans and health spending accounts and also workers' compensation plans. CELT For more information see: IHealth Canada, Marihuana Medical Access Program Statistics http://hcsc.gc.ca/dhp-mps/marihuana/ stat/index-eng.php. IWilson v. Transparent Glazing Systems (No. 4), [2008] B.C.H.R.T.D. No. 50 (B.C. Human Rights Trib.). IRe UBCJA, Local 1325, 2013 CLB 17278 (Alta. Lab. Rel. Bd.). ABOUT THE AUTHOR Tim Mitchell Tim Mitchell is a partner with Norton Rose in Calgary. He can be reached at (403) 2330050 or Tim.Mitchell@nortonrose.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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