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Accommodating marijuana

Some individuals have been dismissed when their employer found out they used marijuana for medicinal purposes, despite the lack of any evidence it had an impact on their work
REUTERS/Mario Anzuoni

By Stuart Rudner

With growing medical evidence, evolving societal views, and amended legislation, it is inevitable that we will see more widespread use of medicinal marijuana, and that this will have an increasingly significant impact on the workplace. Already, anecdotes of individuals seeking accommodation for the use of medicinal marijuana are increasing in frequency, and more and more individuals are wondering about their rights, while more and more employers, many of them skeptical, wonder whether the new laws mean they have to "pay someone to work while they are high.”

I have spoken at several conferences on the topic of accommodation of medicinal marijuana in the workplace. The bottom line, as I have expressed on many occasions, is that accommodation of medicinal marijuana is no different than accommodation of any medication. The only reason that this receives so much more attention is the fact that many people have preconceived notions and as soon as they hear the word "marijuana,” they envision a group of individuals coming to work while high, gathering in the lunchroom and eating chips and other snacks watching bad sitcoms.

I am certainly not a doctor, but I have been advised by those with medical expertise that the impact on an individual using medicinal marijuana, and the degree of impairment, will vary greatly depending upon the manner of ingestion, as well as several other factors including the way in which the marijuana was grown.

One of the key messages that our firm has conveyed is that in the current era of human rights, no request for accommodation should be denied hastily. This applies to circumstances such as childcare obligations, as well as the use of prescription medication, including marijuana. Every organization should have a clear procedure for responding to requests for accommodation, and before any such request is denied, the individual seeking accommodation should be asked to produce appropriate documentation demonstrating the need.

Once that takes place, the onus falls to the employer to engage in a meaningful assessment of whether accommodation is legitimately required and, if so, whether it is feasible. Bear in mind that if the accommodation relates to a ground protected by human rights legislation, then the employer must accommodate to the point of undue hardship. Many organizations expose themselves to liability by hastily responding that the accommodation is "impossible," without giving it any genuine consideration.

With respect to the use of marijuana, or any medication, cause for concern is usually related to safety. As one manager of a delivery company expressed to me, he is certainly not going to allow his driver to work while under the influence. And as I responded, no one would expect him to do so. However, accommodation might involve rearranging the individual shift, based upon when they will be using medicinal marijuana.

If any form of accommodation would constitute undue hardship for the employer, it will not be required. It is also important to note that individuals are not entitled to their preferred form of accommodation; rather, the employer is obligated to identify any reasonable forms of accommodation and choose from them, if there are any.

There have been a handful of cases already where individuals were dismissed when their employer found out that they used marijuana for medicinal purposes, despite the lack of any evidence that it had an impact on their work. In one case, the reality was that the individual had apparently used medicinal marijuana for years without incident. Such dismissals will not be upheld.

In a very recent case, the dismissal of an employee who used marijuana medicinally, pursuant to a legitimate prescription, was upheld. However, in that case the dismissal was justified based on the individual’s failure to report their use as required by policy.

That gets to another point that we often make: Employers should have drug and alcohol policies in place. Those policies should clearly prohibit the use of illicit drugs or alcohol in the workplace, as well as make it clear that coming to work while impaired is unacceptable. That is fairly common in most such policies. However, most policies do not address the issue of prescription medication. They should make it clear that employees who are using prescription medication that might cause impairment must report this to the employer. In this manner, prescription marijuana would be treated differently than any other form of prescription medication.

In International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers' Assn. Inc. (Uprichard Grievance), the grievor was dismissed after a safety advisor smelled marijuana inside a truck that the grievor had been using. The grievor stated that he did not use marijuana at work, but mentioned that he would not pass a drug test. The company learned that the grievor had a prescription for medicinal marijuana and did, in fact, use it. He had never reported this to the company. The company decided that his failure to report the prescription, and his possession and use of marijuana at the worksite, were breaches of the Nalcor Energy Lower Churchill Project Drug and Alcohol Standard (the "LCP Standard").

Notably, the Project Handbook established “safety absolutes,” one of which was that failure to comply with the LCP Standard would result in dismissal in the absence of exceptional mitigating circumstances. The grievor filed a grievance, which was denied. The arbitrator found that there was just cause to dismiss the grievor for the reasons set out above, and that none of the potential exceptions — 1) possession of prescription drugs that did not adversely affect an employee's ability to safely perform her duties and 2) employees who notified their supervisors of any potentially unsafe side effects associated with their use of prescription drugs — applied.

The grievor also alleged that dismissing him for use of prescription medication was discrimination contrary to the Human Rights Act. However, the arbitrator undertook the analysis set out in the Meiorin case and found that there was a bona fide occupational requirement and therefore no breach of human rights.

The employer succeeded in this case largely due to the fact it had a well-written policy in place and it could justify the policy, and the application thereof, based upon a genuine occupational requirement. That is an important lesson for employers to take. For employees, any use of prescription medication which might cause impairment at work should be reported to the employer.

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Stuart Rudner

Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw. He can be reached at srudner@rudnermacdonald.com.
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