Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Is a drug-free workplace a thing of the past? Medical marijuana creates a buzz for employers BY LiSa BoLTon MArIjuAnA use for recreational purpos- es is currently illegal in Canada. However, for the more than 40,000 Canadians who legally use the drug for medical purposes, obtaining it has recently become a lot easier. Effective April 1, 2014, medical marijuana users no longer require a license from Health Canada and can secure the drug from an authorized distributor with only a doctor's prescription. According to Health Canada, this change is likely to increase the number of medical marijuana users across the country to more than 450,000 in the next 10 years. For em- ployers, this creates many new and challeng- ing issues as marijuana use creeps further and further into the workplace. Accommodating the user When marijuana is used to treat a disabling medical condition such as epilepsy, chronic pain, or post-traumatic stress disorder, an employer has a duty under human rights legislation to accommodate the employee unless the accommodation would result in undue hardship for the employer. is means an employer must permit an employ- ee to use marijuana during working hours if it is medically necessary to do so. How- ever, an employer does not have to permit an employee to smoke marijuana while on the job or expose other workers to second- hand smoke. An employer may implement workplace rules regarding the use of medical marijuana so long as appropriate accommo- dation is provided to the employee. is may include requiring the employee to smoke in a designated area during scheduled breaks or meal periods, and restricting the employee from smoking while in uniform, in public view, in company vehicles, or in the vicin- ity of other workers or customers who may come into contact with the smoke. Are there alternatives? If there is a disability that requires the use of medical marijuana, an employer should not assume smoking the drug is the only option. To ensure both the employee and workplace are respected and served appropriately, an employer should explore suitable alterna- tives to smoking — such as ingesting mari- juana in food. A modified work schedule or leave of absence during the period of treat- ment — depending on the frequency of ad- ministration, dosage and anticipated degree of impairment — may also be appropriate. Impairment on the job Accommodation does not mean allow- ing an employee to carry out his duties while impaired. Under Ontario's Occupational Health and Safety Act (OHSA), for example, an employer has an obligation to take every precaution reasonable in the circumstances to protect the health and safety of workers. is includes identifying hazards which may result from an employee working while un- der the influence of medical marijuana. e bottom line: an employer must carry out its health and safety due diligence at the same time it accommodates an employee requir- ing the use of medical marijuana in the workplace. In the case of a safety-sensitive position, this may mean considering wheth- er the employee can be reassigned to a non- safety-sensitive position. no duty to disclose pot smoking e obligation to accommodate is easy to identify if the employee discloses medi- cal marijuana has been prescribed for a disabling medical condition. But what if the employee stays silent? ere is no legal re- quirement for an employee to disclose the use of medical marijuana. However, an em- ployee has a duty under the OHSA to report hazards in the workplace. As such, supervi- sors and managers should be alert to signs of possible impairment so steps can be taken to accommodate, if appropriate. How employers can navigate this new territory To help manage risk resulting from the antic- ipated increase in employee use of medical marijuana, employers should ensure their drug and alcohol policy is broad enough to address impairment not only from the use of illegal drugs, but also prescription medi- cation such as marijuana. While there are many nuances to be addressed and tailored to the specific workplace, at a minimum the policy should: • Prohibit an employee in a safety-sensitive position from working while impaired • Require an employee to disclose informa- tion about any prescription drug that may impair his ability to perform work safely • Set out a process for obtaining additional medical information to facilitate accom- modation • Ensure the employee (and union if appli- cable) participates in the accommodation process • Identify restrictions on the use of medi- cal marijuana in the workplace (such as where and when) • Identify consequences in the event of a breach of the policy (such as discipline). WeBinars Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, independent contractors, occupational health and safety, the new labour market opinion regime, and a Canada Labour Code primer. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. About the Author LISA M. BOLTON is a lawyer with Sherrard Kuzz LLP, a management-side employ- ment and labour law firm in Toronto. Lisa can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www. sherrardkuzz.com. There is no legal requirement for an employee to disclose the use of medical marijuana. However, an employee has a duty under the OHSA to report hazards in the workplace.

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