A growing operation: Are you ready for medical marijuana?

Ottawa has embraced marijuana for medical use – which means employers will be faced with questions about workers legally allowed to use it
By Tim Mitchell
|Canadian HR Reporter|Last Updated: 11/25/2013

The federal government has embraced the idea of marijuana for medical use and after beginning the practice of granting licences to Canadians who need it for pain management and other medically related purposes a few years ago, it has significantly increased the number of people allowed to use it.

Ultimately, this means employers are more likely to encounter employees who use medical marijuana. So how should employers handle employees legally allowed to use it, particularly in workplaces with anti-drug policies and safety-sensitive positions?

In 2012, the number of medical marijuana licences issued in Canada more than doubled. In January 2012, 13,781 Canadians legally possessed medical marijuana licences. By December, the number had increased to 28,115, according to Health Canada. Upcoming changes to the way medical marijuana is approved and administered suggest this upward trend will continue.

For employers, immediate questions that will arise are: How do I deal with a medical marijuana-licensed employee occupying a safety-sensitive role? Are employees with medical marijuana licences exempt from drug testing? If an employee with a licence says she needs to use marijuana at work, how do I address this?

Changing rules

In Canada, medical marijuana is controlled through the Marihuana Medical Access Regulation (MMAR), which flows from the Controlled Drugs and Substances Act established by Health Canada. The MMAR came into force in July 2001 and originally licensed marijuana use for end-of-life care and severe pain, including pain associated with cancer or HIV/AIDS. The MMAR permits the possession and “personal use production” of marijuana by persons who can establish a medical need after consultation with a medical practitioner.

These humble beginnings notwithstanding, the MMAR is changing. Effective March 31, 2014, the Marihuana for Medical Purposes Regulations (MMPR) come into effect. One of the biggest changes is licences will no longer be granted by Health Canada. Instead, physicians who previously occupied the role of sponsors (confirming medical conditions fit for a licence) will be transformed into gatekeepers, tasked with prescribing medical marijuana and effectively licensing a person to use it.

2008 decision

In 2008, the use of medical marijuana in the Canadian workplace was addressed to some extent by the British Columbia Human Rights Tribunal in Wilson v. Transparent Glazing Systems (No. 4). An employee with a licence to use was terminated after his employer received a third-party complaint about the employee being impaired at the worksite.

The tribunal found the employer failed to make necessary inquiries prior to termination, considering the employer knew the employee had a disability and was taking medication. However, minimal damages were awarded to the employee because, as the tribunal found, the employee would have been justly terminated regardless due to poor performance.

2013 decision around licence

In a more recent case, the Alberta Labour Relations Board was required to decide whether a union had failed in its duty to fairly represent one of its unionized employees who was dismissed for having marijuana in his camp room at a worksite. The employee sought to grieve the dismissal, alleging he had a valid medical marijuana licence and the union was prepared to discuss the issue of accommodation with the employer.

However, when the employee was unable to produce the licence, the union discontinued the grievance. The Alberta Labour Relations Board, unsurprisingly, dismissed the duty of fair representation complaint for the reason that the employee failed to co-operate or provide the union with the proof it needed to pursue the grievance: The licence.

While this 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

Employers can request to view the actual medical marijuana licence. The licence itself is a piece of government-issued identification with the holder’s photograph.

The time from when the employee submits the application forms to Health Canada to the receipt of the actual licence is about 10 to 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

•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 a licensed employee like any other who has a prescription medication that potentially affects 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.

Safety-sensitive positions mean further inquiries

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 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 that 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.

Proactive steps

Although increases in medical marijuana in the workplace pose 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

•state when reporting of prescription and non-prescription medication is required.

Most importantly, a drug and alcohol policy should clearly state 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 kinds 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 should also be alert to the possibility of requests by employees for coverage of medical marijuana through health benefit plans, health spending accounts and workers’ compensation plans.

For more information see:

Health Canada, Marihuana Medical Access Program Statistics, http://hc-sc.gc.ca/dhp-mps/marihuana/stat/index-eng.php.

Wilson v. Transparent Glazing Systems (No. 4), [2008] B.C.H.R.T.D. No. 50 (B.C. Human Rights Trib.).

Re UBCJA, Local 1325, 2013 CLB 17278 (Alta. Lab. Rel. Bd.).

Tim Mitchell is a partner at Norton Rose in Calgary. He can be reached at (403) 233-0050 or tim.mitchell@nortonrose.com.

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