medical marijuana in the workplace
TRANSCRIPT
Medical Marijuana in the Workplace
Presented byStuart E. Rudner
April 14, 2016Medavie Blue Cross Benefits 2016 Conference
Moncton Delta Beausejour
1. The State of the Law2. The Duty to Accommodate3. Using Policies4. The Accommodation Process
Overview
The State of the Law
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Introducing Medical Marijuana2001: Government introduces Marihuana Medical Access Regulations – need prescription + license
2014: Marijuana for Medical Purposes – only need prescription
As a result…Health Canada estimates that 450,000 Canadians will turn to using legal medical marijuana in the next 10 years
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THE LAWRegulation SOR/2013-119 of the Controlled Drugs and Substances Act (2) The following persons may possess dried marihuana:
(a) a person who has obtained the dried marihuana for their own medical purposes or for those of another person for whom they are responsible
(i) from a licensed producer, in accordance with a medical document,(ii) from a health care practitioner in the course of treatment for a medical condition, or(iii) from a hospital, under subsection 65(2.1) of the Narcotic Control Regulations;
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THE LAW Health Canada maintains a public database
on authorized licensed producers of medical marijuana
Need: prescription from doctor to obtain, but no longer need licence from Health Canada
Federal government now only responsible for licensing producers, not possessors
Patients can now grow their own medical marijuana - Allard v. Canada (Federal Court, February 2016)
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The Duty to Accommodate(not a one way street)
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The Duty to AccommodateEmployers are under a duty to accommodate, up to the point of undue hardship, an employee protected by the Ontario Human Rights Code’s “grounds of discrimination.”
Subject to bona fide occupational requirement
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Canada v. Johnstone, 2013 FC 113
Employers cannot dismiss requests for accommodation out of hand
For any accommodation request onus is on employees to provide
detailed information employees are not entitled to dictate
preferred form of accommodation employer can assess options and
determine if any are viable.
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Undue Hardship Accommodation not required if it
causes undue hardship. High standard to meet Severe negative effects outweigh
benefit of accommodation
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What is (or is not) Undue Hardship?
Consider:1. Financial Costs (bankruptcy?)2. Health and safety risks
E.g. second-hand smoke3. Impact on nature of operationNOT
Business Inconvenience Customer/Staff Complaints
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What is Undue Hardship? British Columbia (Superintendent of
Motor Vehicles) v. British Columbia (Council of Human Rights)(“Grismer”): High standard to establish cost as undue hardship – needs to be:– Quantifiable– Related to accommodation– So substantial it would alter essential
nature/viability of enterprise
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Using Policies
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Implementing Policies Incorporate into employment
contracts Publicize policies Train all employees: staff, managers,
supervisors, executives Monitor behaviour Discipline offenders Update regularly
Design a Drug Policy
Collaborate with workplace health and safety committee
Effective, precise communication of employee entitlements and obligations
What is acceptable and not– what about prescription medication?
LIMITED circumstances where permissible e.g. sufficient evidence of a problem
Test must be justified under the Entrop decision criteria:– Rational connection between test and job
performance– Objective basis to believe conduct related
to a drug dependency?– Is drug use objectively a safety risk for
other workers?
Deal with Suspected Abuse: Drug Tests
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The Accommodation Process
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Process of Accommodation Process is to be 2 (or 3) way dialogue Request medical documentation from
employee on ability to safely carry out duties
Employer entitled to know: limitations on ability to carry out job
functions Assess need for accommodation Then assess accommodation options
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What should accommodation look like?
Modified or shuffled duties if necessary
Modified hours Leave of absence etc Make sure it is clear when employee
is required to report use of marijuana
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What should accommodation look like?
NOT: creating a completely different job Lafrance v. Treasury Board (Statistics Canada) [2009] CPSLRB No. 113: duty to accommodate does not go so far to require new position “out of bits and pieces” without considering operational requirements
CASE LAWWilson v. Transparent Glazing Systems (BCHRT): employer obligation to ask if medication was affecting ability to perform jobCalgary (City) v Canadian Union of Public Employees (2015, Alberta): duty to accommodate off-hours use of medical marijuana even in a safety-sensitive position
Additional Hazards Ivancicevic v. Ontario (AGCO):
passive inhalation could = some level of impairment/complications– Can you ask an employee to smoke
privately? – What about asking them to ingest
instead of smoking? Potentially yes – however, beware of
challenges from employee based on increased cost or differences in medical efficacy
Any impairment must be in safe and acceptable fashion
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What about non-safety sensitive positions?
Little case law on accommodating marijuana in non-safety sensitive positions
Frequent issue in the area of services– Starnes v. Royal Canadian Legion – need
to make effort to accommodate marijuana use for legion member
Dos and Don’ts
DO:
• Obtain information speaking directly to employee’s ability to do job
• Consider hazards • Request as much information as
possible to make decisions• Document thorough assessment
Dos and Don’ts
DON’T
• Request specific diagnosis• Request information irrelevant to job
duties• Request entire medical file
Accommodating disability = accommodating treatment
Treat all requests for accommodation seriously
Educate yourself about medical marijuana Document all efforts to accommodate
GET LEGAL ADVICE
Avoid a Human Rights Lawsuit
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Stuart E. [email protected]
Toronto: 416.640.6402York Region: 905.530.2484www.rudnermacdonald.com
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