Time To Be Blunt: Employers Are Required To Accommodate Medical Marijuana Use In The Workplace

As featured in the Fall 2016 issue of HRmatters

The Supreme Court of Canada decriminalized the use of medical marijuana in 2000, and in December 2013 Health Canada reported that nearly 40,000 Canadians were authorized to possess medical marijuana in Canada. Health Canada anticipates that over the next decade the number of Canadians registered to possess medical marijuana will grow to 450,000. As such, there is an increasing urgency for employers to vapourize any misunderstanding or stigma associated with medical marijuana and its use in the workplace.

Pursuant to The Human Rights Code (Manitoba), an employer is required to accommodate an employee’s physical and/or mental disability, up to the point of undue hardship. As with other types of prescription medication, this includes accommodating a disabled employee’s prescribed medical marijuana use. This obligation does not extend to employees who use marijuana illegally (in other words, without a valid and current prescription).

An employer’s duty to accommodate an employee’s use of medical marijuana must be considered in light of its concurrent obligation to maintain a safe workplace under The Workplace Safety and Health Act (Manitoba). More specifically, “every employer shall…ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his workers”. As well, every employee is required to “take reasonable care to protect his safety and health and the safety and health of other persons who may be affected by his acts or omissions at work”.

An employer’s duty to accommodate an employee’s use of medical marijuana must also be considered in light of its obligation to ensure that employees do not smoke in prohibited areas, including enclosed public areas and indoor workplaces, as required by The Non-Smokers Health Protection Act (Manitoba). As well, employers are required to take “reasonable steps to minimize the drifting of smoke into non-smoking areas”.

What does all of this mean for employers?

As with any other medication, employees are under no obligation to disclose their use of medical marijuana to their employers unless their use materially impacts their capacity to perform their duties. However, employers may attempt to increase the likelihood that employees will provide timely notice of medical marijuana usage by including within a carefully drafted alcohol and drug policy a requirement on employees to confirm with their health care providers whether recommended/prescribed medications may negatively impact their ability to perform their work duties and to disclose to the employer any medication usage, including medical marijuana usage, that may affect their ability to perform their work duties in a safe and effective manner.

If an employee notifies the employer that s/he has a prescription for and uses medical marijuana and requires accommodation as a result of his/her medical marijuana use, the employer is required to undergo an assessment of the workplace to determine whether it can accommodate the employee. If the employee works in a safety sensitive position, this may include moving the employee to a different, non-safety sensitive position. If the employee is required to use medical marijuana at night, this may include scheduling the employee to work only morning and/or day shifts. If the employee is required to use medical marijuana during his/her shift, this may include allowing the employee time and arranging for an appropriate area for him/her to do so.

Accommodation is a joint responsibility and requires the employee’s participation and cooperation and, where the employee is represented by a union, the union’s participation and cooperation. On the part of the employee, this includes providing medical documentation which confirms his/her prescription and the impact his/her usage of medical marijuana may have on his/her ability to perform his/her work duties. Employers can assist medical practitioners in their assessment by providing information regarding the employee’s position and the risks unique to the workplace.

Accommodation can be a long process that requires regular re-evaluation by the employer of the employee’s specific circumstances and changes to the employee’s work duties and responsibilities. Undue hardship is a high threshold to meet and so employers are best served by considering every possible accommodation before claiming to have met that threshold.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that this article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.