Proper accommodation assessment is key
Five years ago, the federal government made a big move by legalizing cannabis. Leading up to that decision, many employers were worried that the wider availability of the drug would significantly impact workplaces in a negative way. But even before the legalization of cannabis for recreational use, employers were already dealing with the issue of medical marijuana, which has been allowed since 2001.
The acceptance of marijuana for medical use was one step on the road to overall legalization, and a recognition that the drug can help people with chronic medical issues, particularly pain. But it made things tricky for employers who were concerned about impairment at work, particularly in safety-sensitive workplaces.
The legalization of recreational marijuana may have made things a little more complicated, as now people don’t necessarily need a prescription to use marijuana for a condition. In fact, a recent study found that about one in seven Canadian workers who were injured or fell ill due to a work-related reason use marijuana to treat their issues, and two-thirds of those people are doing it on their own without guidance and therapeutic cannabis use from a health-care provider.
Another survey conducted in 2019, one year after overall legalization, also had concerning results for employers. One in three Canadian workers think that if they have disclosed a medical cannabis licence, they can consume the drug during work hours.
Medical marijuana and safety-sensitive workplaces
This raises safety issues as well as productivity concerns, but how should employers handle medical marijuana?
About three years ago, a federal arbitrator heard a case involving an airport worker who worked in a safety sensitive position and had a prescription for medical marijuana for a work-related back injury. He was involved in a minor incident when a tow bar struck an aircraft, so he had to undergo a post-incident drug test. He tested positive for a small amount of marijuana and he acknowledged taking a small amount before work.
The airport fired him for violated its drug and alcohol policy that prohibited working while impaired or under the influence of drugs or alcohol, but the arbitrator found that the policy failed to accommodate employees with prescriptions and therefore violated the Canadian Human Rights Act. The arbitrator also noted that the incident wasn’t significant enough to require a post-incident drug test under the policy.
A more complicated case involving a worker with a medical marijuana prescription took place in Newfoundland and Labrador. The worker took medical marijuana to treat pain caused by two medical conditions and was denied employment on a safety-sensitive construction site. Once he disclosed his prescription – and a doctor’s opinion that the level of impairment on the day after use would affect his job performance – the employer denied the placement, arguing that measuring impairment from marijuana was difficult and therefore too risky for a safety-sensitive position.
An arbitrator sided with the employer, ruling that the employer was entitled to have reasonable medical information supporting that the employee could work and a lack of adequate testing to determine impairment was undue hardship for the employer.
The Newfoundland and Labrador Supreme Court agreed with the arbitrator, finding that it was a reasonable conclusion.
Duty to accommodate and marijuana
Interestingly, another case came up in Newfoundland and Labrador a couple of years ago, this time before the province’s Board of Inquiry with a human rights angle. A registered nurse applied for a job with a supplier of medical personnel to remote worksites and advised that he had a prescription for medical marijuana for chronic pain, insomnia, and anorexia. He added that he would abstain from using the drug during three-week rotations at the remote site. However, he failed his drug test and the employer flagged him as a safety risk and rejected his application.
The board found that the employer’s concern was rationally connected to ensuring a safe work environment and was in good faith, but the employer made no analysis of whether it could accommodate the worker. As a result, the employer was ordered to pay the worker compensation for loss of income and damages for mental distress from discrimination.
Employees who use medical marijuana usually do so because of a medical condition that constitutes a disability protected under human rights legislation. It may seem obvious that workplace safety is an issue when there’s a risk of impairment, but it doesn’t mean that the employer can automatically keep the employee out of the workplace. As with any potential human rights issue, they have a duty to assess accommodation.
The assessment may confirm that medical marijuana and the particular workplace don’t mix, but the employer has to do the work. If not, it’s a prescription for trouble.