Employers should know the facts before responding to requests
By Stuart Rudner
I am writing this blog from Moncton, N.B., where I was recently part of the Medavie Blue Cross Benefits3 Conference. The organizers kindly invited me to speak on the issue of accommodation of medical marijuana in the workplace. I enjoyed the conference, as well as the numerous questions that I received and discussions that I engaged in with attendees on this developing and controversial subject.
One of the issues that arose related to the impact of medical marijuana on an individual's ability to perform her job duties, and the fact that in some cases, there may not need to be any accommodation at all.
One of the key points of my presentation, which can be found here, is that although the issue of medical marijuana often engenders a visceral reaction based upon pre-existing notions of marijuana use, the reality is that accommodation of medical marijuana should be approached no differently than any other form of accommodation, particularly when it comes to the use of prescription medication.
In the course of my presentation, there was discussion regarding the potential need to accommodate impairment that would be caused by medical marijuana. One of the attendees 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" as the recreational user would.
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.
However, if there is no indication that there will be impairment, or that any impairment would be minimal and, keeping in mind his 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 the employee due to concerns about privacy rights, there is nothing wrong with employers requesting documentation that is reasonably required in order to assess the need for accommodation and the options that might be available. Employers can seek 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.
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 allowed to grow.
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.
As I have said many times, accommodation of medicinal marijuana is to be approached in the same way as any other prescription medication. Many employers do not require that employees 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. This would include medicinal marijuana.
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 educate themselves regarding medicinal marijuana to ensure they are not predisposed to answer any particular way based upon pre-existing notions of marijuana that are likely to be entirely inaccurate.
As we have seen in recent years, the protections afforded by human rights legislation have evolved substantially. This includes the addition of new grounds, such as sexual orientation and sexual identity, 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 expose themselves to significant liability if they fail to respond to these requests appropriately.