The Duty to Accommodate Medical Marijuana in the Workplace
Previously printed in the LexisNexis Labour Notes Newsletter.
Across North America, attitudes towards marijuana use, both recreational and medical, are changing quickly. To the south of our border, several U.S. states, including Washington, Colorado, Alaska and Oregon, have legalized the recreational use of cannabis. In Canada, while recreational use has yet to be legalized, the federal government has, through the establishment of the Marihuana for Medical Purposes Regulations (“MMPR”), significantly relaxed the rules around access to marijuana for medical purposes.
Pursuant to the MMPR, medical marijuana is accessible to anyone who obtains a “medical document” from a healthcare practitioner. The MMPR does not require a prescription from a doctor. It does not require evidence of medical examinations or an attestation that medical marijuana is the best or only available treatment for the individual obtaining the document.
The ease with which medical marijuana is accessible pursuant to the MMPR has led to concerns about the legitimacy of the use of medical marijuana by many individuals and is, among other things, forcing employers to consider how to address the use of medical marijuana by their employees. There are a variety of different considerations that come into play of which employers must be mindful.
It is clear that the duty to accommodate applies to disabled employees who use medical marijuana. Medical marijuana, when being used legitimately, is used in connection with a medical condition. Employees using medical marijuana legitimately are to be treated in the same manner as any employee using medication to deal with a medical condition – i.e. they are to be accommodated to the point of undue hardship. Accommodating an employee who needs to use medical marijuana may require an employer to modify hours of work, allow for additional breaks or assign the employee to a less demanding or less safety-sensitive position.
However, the duty to accommodate is not limitless. Among other things, the fact that an employee has a “medical document” does not mean that an employer cannot require him or her to undergo a medical examination to ascertain whether medical marijuana is necessary or another medical option is available to address that employee’s condition. It may be that other, less impairing options are available to address the employee’s condition.
Further, it does not entitle an employee to report to work in an impaired state. Pursuant to occupational health and safety legislation, employers have an obligation to maintain a workplace that is safe and healthy for employees and members of the public. Employers are not obligated to do anything which would impede their ability to meet that obligation.
So, what should employers keep in mind when an employee arrives at work with a document which allows him or her to obtain and use medical marijuana?
- Treat it seriously: While some employers might be inclined to disregard a request to accommodate an employee using medical marijuana, it is important to remember that the duty to accommodate which is owed to an employee who is using medical marijuana is the same as that owed to any employee who is using medicine to treat or manage a medical condition.
- Remember that the duty to accommodate is not limitless: The fact that an employee has a medical document which allows him or her to use medical marijuana does not mean that the employee has a right to be impaired at work, particularly where that impairment could threaten the health and safety of the employee, his or her co-workers or the public. Accordingly, where the situation dictates it, employers are permitted to require that the employee not report to work in an impaired state.
- Request Information: A significant component of the accommodation process is requesting information. Accordingly, if necessary, employers should not hesitate to ask for information about the underlying disability, the legitimacy of the use of medical marijuana and whether other, less impairing forms of treatment are available.
The ease with which individuals are able to obtain medical marijuana means that employers will be confronted with issues of how to address marijuana use by their employees on an increasingly regular basis going forward. Employers must be aware of their duties to such employees under human rights legislation and are advised to proceed carefully and cautiously when faced with employee marijuana use.