Whenever we mention the phrase “medical marijuana in the workplace,” we’re met with eye-rolls and smirks. After all, a poll we conducted in September 2016 found only 21 per cent of business leaders in small and medium-sized companies believe medical marijuana should be covered under a group benefits plan.
But employers also have to consider other ways marijuana could affect their workplace: productivity, the health of coworkers and branding. It must also be taken seriously in the context of medical accommodation.
Medical marijuana, which has been legal in Canada since 2001, must be treated like any other prescription medication. The need for medical marijuana can be seen as evidence of a disability, such as arthritis, cancer, chronic pain or sleeping disorders, and the Canada Human Rights Act protects employees against discrimination on the grounds of disability.
But how can employers ensure they’re respecting workers’ rights without endangering other staff members? If a machine operator was spotted smoking marijuana during their break, human resources need to consider their response if the operator explains he was consuming a medication, not getting high for kicks.
Employers have a duty to accommodate employees taking prescribed drugs, according to Keith Burkhardt and Andrew Ebejer, employment lawyers at Sherrard Kuzz LLP in Toronto. Nevertheless, they are within their rights to ask questions, make requests and impose restrictions — namely that the employees don’t carry out their duties while impaired.
For an employee prescribed medical marijuana, employers should seek medical documentation that clears them to safely carry out their assigned duties. If the inquiry discloses a meaningful impairment in the employee’s capacity to do their job, the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment.
If safety won’t be compromised, employers should have workers fill out workplace accommodation forms, Burkhardt and Ebejer say, with information about the condition that requires medical marijuana use, what dosage has been prescribed and whether or not usage is necessary at work. Once it has been identified that the use of the drug is required for the individual’s disability, accommodation could take many forms, including:
- Earmarking a private section of the property so that it can be consumed in private;
- Allowing for regularly scheduled breaks to take the medicine based on doctor’s orders;
- Asking if the employee would agree to ingest an oil, topical cream or edible, as opposed to smoking;
- Asking the employee to store the drug in a sealed or locked area;
- Requiring that the employee refrain from smoking while in company uniform in public view; and
- Identifying repercussions if the policy is not followed.
An employer may also have a written policy requiring employees to disclose the use of any substance, prescribed or otherwise, which may impair their ability to perform work safely. This is to ensure the employer is able to accommodate and treat the employee without discrimination.
Human rights legislation requires that a disabled employee be accommodated and that their dignity be respected, if doing so won’t create undue hardship. Nevertheless, a prescription for medical marijuana doesn’t entitle an employee to be impaired at work, compromise their own safety or the safety of others, smoke in the workplace or have 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.
For recreational use, however, employers can require that marijuana, like alcohol and cigarettes, only be consumed off company premises and done so in a way that doesn’t interfere with work performance.
The issue of including medical marijuana in a benefits plan remains up in the air. While we know insurers don’t officially cover the drug since it lacks a drug identification number, some carriers have made exceptions. Once the precedence has been set, if companies or carriers are looking to cover the product, they should ask a number of questions, including: whether pre-authorization has been requested and received; where the drug was purchased; whether an itemized receipt is available from a licensed dispensary; what the maximum reimbursable amount will be; and the timeframe of any ongoing treatment plans.
When a request for accommodation is received, it should never be rejected out of hand. Employers should also educate themselves about medical marijuana to ensure they’re not predisposed to decline requests based on pre-existing notions of marijuana. Human resources professionals have much to consider with respect to medical marijuana in their own workplaces, regardless of the expected change in Canadian legislation this year. However, if an employer ensures there are written policies in place, the accommodation is due to a medical need and an employee is able to meet halfway, it can be managed ensuring compliance with employment standards.
Disclaimer: The above provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained as appropriate.
Yafa Sakkejha is the general manager of the Beneplan Co-operative, a mutual buying group for employee benefits. Joel Gomes is human resources manager at the Beneplan Co-operative.