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What Mississauga employers need to know about medical marijuana in the workplace:

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As the Cannabis Act takes effect, there is a great deal of confusion, especially regarding medical marijuana. Several clients at our Mississauga ON practice have asked how the new legislation will impact the rights of employees as well as employers. The short answer is that essentially, it doesn’t.

Medical marijuana in the workplace has been an issue for employers since the Marihuana Medical Access Regulations (MMAR) law passed in 2001. The Cannabis Act which is expected to come into force in July 2018, is specific to recreational use. However, with legalization and de-stigmatization, the issue is becoming more common, and more complex. Here is what you need to know.

Marijuana and human rights

Many employers enact a zero-tolerance policy for drug use. Employers also expect that employees will not be under the influence of recreational drugs and narcotics when the come to work. Employers generally expect enforcement to be simple. However, it is not simple at all, due to human rights legislation and the ever-expanding definition of discrimination.

Ontario human rights legislation is designed to ensure that every citizen is free from discrimination when accessing services and employment, by eliminating barriers of harassment and discrimination based on specific criteria. The traditional grounds for discrimination included items such as race, creed, and disability. Recently, the grounds have been expanded to include items such as gender expression. To add complexity, the definitions of certain criteria have expanded.

The legal definition of disability is not limited to physical impairment. Addiction, chronic pain, many types of illness, and other conditions are considered types of disabilities. Furthermore, protection against discrimination includes not only the actual disability, but also the medications needed to treat the disability. Therefore, employers may be violating the human rights of an employee if they treat an employee differently solely based on the employee’s medicinal or addictive use of marijuana.

Employer’s duty to accommodate

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Every employer has a legal duty to accommodate their employee’s needs in relation to any of the human rights protected criteria, with certain exceptions. The employer is not required to accommodate the employee if the employer gathers the information and explores all possible solutions but comes to the conclusion that it would be impossible or unreasonable to accommodate the employee for the following reasons:

  • BFOR (bona fide occupational requirement) – This means that an employer can impose requirements that conflict with protected criteria, if the employer can prove that the requirement is a reasonable, essential skill, and relevant to the job. This is unlikely to be a factor in situations relating to marijuana.
  • Undue hardship – The law expects employers to incur some hardship, such as cost or interrupted workflow, in an effort to accommodate a disabled employee. However, law makes exception for circumstances that are described as undue hardship or extreme hardship. Financial hardship may not always be considered undue hardship as it may not always outweigh the benefits of accommodation. It should be noted that when accommodating the employee would cause a health and safety risk, employers may rely on undue hardship to deny accommodation to an employee who requires or request marijuana use. This is commonly the scenario that arises with marijuana use in the workplace.

What to do when an employee requests accommodation

Regardless of whether it is marijuana related, there is only one appropriate response to any request for accommodation. Consider it. Never reject a request out of hand, no matter how unreasonable it may seem. Do your best to comply with the request or offer an alternative solution for the employee requesting accommodation.

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An employer will never be required to allow an impaired worker to perform a safety-sensitive task.

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In fact, employers have a duty to protect the safety of employees and the public. However, there may be alternatives for accommodation. For example, the person may be transferred to another department that is not safety-sensitive, or the schedule may be changed so that the employee is not working while impaired.

Even if accommodation is not possible, the employer will need documentation of efforts in case of a legal challenge. When an employee requests accommodation for marijuana use, it may be appropriate to take these steps:

  • Request more information. Don’t ask for a specific medical diagnosis or full medical history. However, the employee’s right to privacy does not prevent an employer from requesting relevant and necessary information. This includes a cannabis prescription, frequency of use, duration of impairment after each use, and total treatment time.
  • Determine if marijuana use qualifies for human rights protections. If the employee is a recreational user, he or she is not protected. A documented medical user or addicted individual is protected. The requirement is less clear for self-medicating patients, and individuals claiming addiction without providing evidence. In these situations, it depends on the validity of the employee’s claim, the amount of information provided, and the effort to verify or accommodate on the part of the employer.
  • Explore options for accommodation. This might include changing working hours, re-assignment to a non-safety sensitive position, a leave of absence, or many other options. It is critical to keep an open line of communication between employer and employee. Accommodation should be a cooperative effort, with an ongoing dialog.
  • Document all efforts to accommodate.

As a final note, it is important to understand that the laws relating to cannabis are likely to change in the coming months and years, as our society and legal system adapt. Currently, there are few legal precedents, because a limited number of medical cannabis related cases have gone through the court system. Employers and employees alike are wise to be cautious in areas of legal uncertainty and stay abreast of new developments. When in doubt, contact GAB Law Firm at (365) 800-2090 for assistance.

 

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