From smoke to vapour

Medical marijuana exemption in Ontario puts focus on managing employees who use it

By Jeffrey R. Smith

Last week, the Ontario Liberal government caused quite a stir when it said new rules banning e-cigarettes in public spaces that come into effect on Jan. 1, 2016, wouldn’t apply to medical marijuana users. That meant people who use medical marijuana through vapourizing could theoretically use it anywhere, including restaurants, bars and playgrounds where smoking and e-cigarettes are banned.

While the provincial government quickly turned around and, after the kerfuffle, said it would reconsider the exemption, it raised a lot of questions, not just for the general public but for employers, since workplaces could also be places where people could use medical marijuana.

Even if the public exemption stays in effect, employers as private property owners and the managers of their businesses have the right to ban such use in their workplaces, much as they can smoking and alcohol use. However, with medical marijuana, the issue arises as to how much a user needs to use it and whether some accommodation is necessary. This issue is becoming more of a concern with the rise of medical marijuana use.

An employee with a license to use medical marijuana obviously has some sort of illness or condition that is likely to qualify as a disability under human rights legislation. If that’s the case, then the employer has a duty to investigate options for accommodation to the point of undue hardship.

If the employee needs to use marijuana during the workday to manage her condition, then the employer pretty much has to allow it, unless the marijuana use negatively affects the employer in a serious manner.

Safety concerns could be a big reason why an employer can’t allow an employee to use medical marijuana at work. This past summer, the British Columbia Human Rights Tribunal ruled that a logging company was justified in prohibiting a logging contractor from using marijuana at work, even though the contractor used it to cope with the effects of having cancer.

The tribunal found the company’s zero-tolerance policy banning marijuana was for legitimate safety reasons and applied equally to all employees, so it wasn’t discriminatory.

It should be noted, however, that the contractor didn’t have proper medical documentation for the marijuana use; but even if he did, it would have to be weighed against the safety of the workplace. At that point, the point of undue hardship would also have to be examined — for example, if there was other work available that the contractor could perform without causing a safety risk and the company could assign it to the contractor without too much trouble, accommodation would be short of undue hardship and the company would be required to implement it.

Medical marijuana at work raises tricky issues for employers to deal with. If the Ontario government’s exemption for vapourizing use in certain areas sticks around, it might get just a little trickier for Ontario employers.

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