With medical marijuana firmly established in Canada, and legalization on the horizon, both employers and employees have questions about how prescription and recreational use are treated in Canadian employment law.
This is the first of a series of blog posts looking at marijuana use in the workplace. This week’s post reviews the current climate surrounding prescription marijuana. In the next post, we will look at recreational marijuana, and how legalization might impact the workplace.
Prescription Marijuana Use
Modern employers are familiar with their obligation to accommodate employees with a disability, and medicinal marijuana use is no different. If an employee discloses that they have been prescribed marijuana to treat a temporary or long-term medical condition, an employer may confirm the presence of an underlying condition requiring marijuana, then must accommodate the employee to the point of “undue hardship.”
Undue hardship is a high bar, and requires an employer to make proactive efforts to facilitate an employee’s needs. The courts in Canada require medical marijuana use to be accommodated, and employers must be careful that any preconceptions about marijuana use do not influence this process. Employers should make reasonable inquiries to ascertain whether an employee needs to medicate at work, and if so, work with the employee to ensure that this is possible. For example, this may include setting up a separate smoking section (if smoking is permitted), or providing a reasonable break at specific times for an employee to medicate.
As with any other medication, an employee taking prescription marijuana must be “fit for work” and not suffer such side effects that their capacity to work is impaired. That being said, employers must be careful not to assume impairment. Users of medicinal marijuana are often taking low doses, and may not experience any impairment from their medication.
Employees should discuss possible side effects with their prescribing doctor, and be prepared to provide details about whether there will be any negative impact on their work.
There are some ways in which marijuana does differ from other prescriptions. Even if an employee is not impaired, there may be other factors preventing them from continuing with their regular duties while they are using prescription marijuana. For example, if an employee is smoking marijuana during breaks, and works in a client-facing position, there may be public image concerns for their employer. In situations like this, it may be permissible to move the employee to a non-public role temporarily.
If there is impairment preventing an employee from performing their regular duties, or other reasonable concerns related to prescription marijuana use, an employer must still make ongoing accommodation to the point of undue hardship. This must take into account both the employee’s underlying condition and their need to take medicinal marijuana, and must accord with established policies.
The Employment Group at Duncan, Linton LLP can answer any questions about this complicated and evolving area of Canadian law. If you are a prescription marijuana patient and are unsure whether it will impact your employment, or have been disciplined as a result of marijuana use in the workplace, we can review your circumstances and explain your options.
We also advise employers with concerns about marijuana use in the workplace. If you have any questions about the accommodation process, the “undue hardship” standard, or an employee who has disclosed marijuana use, contact us online, or call 519-886-3340 to make an appointment. Our skilled employment law team can provide guidance to ensure that any action taken is in line with the current legal landscape.