Accommodating medical marijuana (Guest Commentary)

Employers should know the facts before responding to employee requests

Stuart Rudner
I was recently at a conference in Moncton, N.B., where I spoke on the issue of accommodation of medical marijuana in the workplace. I enjoyed the numerous questions I received and discussions I had with attendees on this developing and controversial subject. 

One issue that arose related to the impact of medical marijuana on an individual’s ability to perform her duties at work and the fact that, in some cases, there may not need to be any accommodation at all.

Although the issue of medical marijuana often engenders a visceral reaction from people based upon pre-existing notions of marijuana use, the reality is accommodation of medical marijuana should be approached no differently than any other form of accommodation.

In the course of my presentation, there was discussion regarding the potential need to accommodate impairment that would be caused by medical marijuana. One attendee spoke to me after my presentation and pointed out that unlike the typical recreational marijuana user, an individual who is using medicinal marijuana, in accordance with a doctor’s prescription, may not experience any impairment or be “high” like a recreational user.

Not being a doctor, I was unable to comment definitively on this, but the point is an important one. Before making any determination about the need for accommodation, an employer would have to assess the impact of the medication (whatever it may be) upon the individual and his ability to work. 

This would require clear documentation from the prescribing physician regarding the impact of the medication on the individual in question. 

If there would be impairment, then some accommodation is likely to be required, which could include modifying his work schedule, modifying his duties or a temporary leave of absence. 

However, if there is no indication there will be impairment, or that any impairment would be minimal and, keeping in mind the person’s job duties, would not cause concern, then no accommodation may be required. Obviously, like any other form of accommodation, this would have to be assessed on a case-by-case basis.

This raises another important point: While many employers are reluctant to request information from an employee due to privacy concerns, there is nothing wrong with requesting documentation that is reasonably required in order to assess the need for accommodation and the available options. 

Employers can seek out information regarding the impact upon the individual’s ability to carry out her job-related functions, but they should not ask for diagnosis or other private information about the employee.

Looser controls
Medicinal marijuana also raises another concern, which is unique. Unlike other forms of medication, which are tightly controlled and consistently produced, medicinal marijuana — particularly in light of a recent court ruling that would allow users with prescriptions to grow their own — is not. In other words, while every single Extra Strength Tylenol is the same, one gram of marijuana can differ greatly depending on where it was grown, how it was grown and how long it was grown. 

As a result, there can be dramatic differences in the impact upon an individual’s ability to do his job. It is difficult to say how an employer should resolve this, other than to request as much assistance from the prescribing physician as possible.

Accommodation of medicinal marijuana is to be approached the same way as any other prescription medication. Many employers do not require employees to report the use of medication that might impair their ability to their job — they should have a policy that requires this, and enforce it consistently. 

Any time a request for accommodation is received, it should never be rejected out of hand. Employers should have a consistent process for all accommodation requests. Furthermore, employers should be educated on medicinal marijuana to ensure they are not predisposed to respond to questions based on pre-existing notions.

As we have seen in recent years, protections afforded by human rights legislation have evolved. This includes the addition of new grounds, as well as the fact that existing grounds are being interpreted more broadly. 

This trend will only continue and requests for accommodation will increase and be more varied. Employers will be exposed to significant liability if they fail to respond appropriately.

Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at [email protected].

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