Increase in medical marijuana licences making it more likely employers will have to deal with employees who have it
A growing operation
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 painkilling 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 using medical marijuana. So how should employers handle employees who are 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, and 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 in medical marijuana licences will continue its course.
This increase in licences and potential for greater use of medical marijuana by employees in turn sharpens the focus for what this may mean for Canadian employers. Some immediate questions that will naturally arise for employers are: How does an employer 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 the workplace, how do does an employer address this?
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 their medical practitioner.
Notwithstanding these humble beginnings, the MMAR is changing. Effective March 31, 2014, the “Marihuana for Medical Purposes Regulations” (MMPR) comes into effect. One of the biggest changes is that licences will no longer be granted by Health Canada, as they are now — instead, the physicians who previously occupied the role of sponsor confirming medical conditions fit for a licence, will now be transformed into gatekeepers tasked with prescribing medical marijuana and effectively licensing a person to use it.
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 his 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. Notwithstanding the unfavourable result for the employer, minimal damages were awarded to the employee because, as the tribunal found, the employee would have been justly terminated nonetheless due to poor performance.
In a more recent case, the Alberta Labour Relations Board was required to decide whether a union had failed its duty to fairly represent one of its unionized employees who was dismissed for having marijuana in his camp room at the 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 on account that the employee failed to cooperate or provide the Union with the proof it needed to pursue the grievance — the medical marijuana licence.
While what 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
What else is there for the employer to know about medical marijuana at work? First, employers can request to view the employee’s actual medical marijuana licence. The licence itself is a piece of government-issued identification with the holder's photograph. The time the employee submits the required application forms to Health Canada to the receipt of the actual licence is approximately 10-12 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; and 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 licensed employees like any other that has a prescription medication potentially affecting 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.
Depending on the nature of an employee's position, 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 of the employee 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 which 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.
Although, increased medical marijuana in the workplace poses 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; and state when reporting of prescription and non-prescription medication is required. Most importantly, a drug and alcohol policy should be clear 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 kind 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 in Canada can expect medical marijuana in the workplace to become a more prominent issue. Physicians will continue to become more comfortable with authorizing and prescribing marijuana for medical reasons, and the number of employees with licences under the MMAR/MMPR should continue to rise. Employers should also be alert to the possibility of requests by employees for coverage of medical marijuana through health benefit plans and health spending accounts and also 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 with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or [email protected].
