November 19, 2018

[HR] Marijuana & Workplace Accommodation

November 19, 2018

Medically authorized marijuana is regulated under “The Cannabis Act”, which came into force on October 17, 2018. This new regulation has replaced the Access to Cannabis for Medical Purposes Regulations (ACMPR), which was first provided in 1999 under an earlier set of regulations.Under the new regulations, Canadians with medical authorization provided by a physician can access marijuana for medical purposes. It is important to note that medical marijuana is not approved by Health Canada as a therapeutic substance and Health Canada has not expressed any conclusions as to the appropriate use of medical marijuana (or other cannabinoids) for medical purposes.Legalization of recreational marijuana creates an issue with respect to what extent marijuanapossession and use can be tolerated in the workplace or at work-related events. Marijuana use can also trigger an employer’s duty to accommodate under human rights legislation, with respect to an individual’s medically authorized use medical and those suffering from marijuana addictions.Both of the issues above must be dealt with in a manner that takes into account an employer’s overarching obligation to ensure the health and safety of its workers. Ultimately it is imperative that all stakeholders understand related laws and regulations in the various jurisdictions and aspects.Accommodation Process for Medically Authorized Marijuana

  • Proceed on a good faith basis, recognizing that medically authorized marijuana should be treated in the same manner as any other prescription medication.
  • As part of the employer’s procedural duty to accommodate, obtain the employee’s treating physician prescription and the associated medical authorization to produce and use marijuana.
  • Employers should do a periodic follow up, to ensure that medical documentation and authorization is up to date and valid on an ongoing basis. This also allows for monitoring.
  • Engage with the employee in order to understand their limitations, including any risk of impairment and review options for accommodation.
  • Keep in mind that an employer’s response to a request for accommodation will vary based on the particular needs of the employee and the type of work they perform and must be weighed against health and safety risks to determine whether putting an accommodation in place will create undue hardship for the employer.
  • For an employee in a safety sensitive position, health and safety considerations may require an employer to modify the employee’s role such that they are no longer performing safety sensitive duties or to put the employee on a leave of absence, unless such accommodations cause undue hardship for the employer.
  • A similar process as above should be followed in the case of marijuana addiction, except in this situation an employer may need to be more proactive as an employee may not be forthcoming as to their needs or may not recognize that they have an addiction.
  • Respect the employee’s privacy, maintain confidentiality, and document all aspects of the accommodation process.

Workplace Policies

  • Employers can use workplace policies to address the use of recreational marijuana, similar to the approach taken to alcohol or narcotic substance consumption, in relation to the workplace or workplace social functions.
  • The development, communication and implementation of workplace policies is crucial to setting in stone what is and is not acceptable concerning marijuana use and possession in the workplace and at workplace social events.
  • Policies must be reasonable and should take into account the nature and circumstances of the employer’s business.
  • Policies can put in place a process for disclosure of marijuana use for medical purposes, describe the accommodation process and confirm the paramountcy of a healthy and safe workplace.
  • Employers can also manage safety risks in the workplace by implementing a drug policy that encourages employees to proactively disclose drug addictions.
  • “Fit to work” policies can be used to stipulate that recreational use and impairment while on duty will not be tolerated and outline a process to be followed in instances of suspected recreational use or impairment.
  • Sale and distribution of marijuana in the workplace can be prohibited by policy.

Employee Training

  • Training on workplace drug policies should accompany their implementation to ensure employee awareness and understanding. This should include new employees at hire.
  • Supervisors and managers (people leaders) should be educated on their particular roles and responsibilities.
  • All employees should be required to sign and acknowledge their understanding of the drug policy.
  • Employers should review their existing drug policies or put one in place, ASAP.
  • As necessary employers should consult with legal counsel or specialists as they work to craft and implement such policies.

Please review our previous blogs for additional details or guidance on this topic.


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