Since 2001, medicinal marijuana has been legal and highly regulated as a controlled substance in Canada. But recent trends point towards a gradual relaxing of these regulations.
In 2014, the federal government eliminated the requirement to obtain a license from Health Canada in order to use medical marijuana in the Marijuana for Medical Purposes Regulations, and revised the regulation to allow Canadians to obtain medical marijuana with only a doctor’s prescription. The regulation of medical marijuana was further rolled back by the Supreme Court of Canada in R v. Smith, 2015 SCC 34, which made clear that Canadians have a constitutional right to use medical marijuana regardless of the method of consumption and form, thereby broadening consumption options for users.
As such, these changes have placed a greater onus on employers to balance the lawful use of medicinal marijuana in the workplace with the need for a safe working environment. This has become an important accommodation issue under the Ontario Human Rights Code because medical marijuana is increasingly being prescribed to deal with conditions such as arthritis, cancer treatment symptoms, chronic pain and sleeping disorders.
While it may be tempting to stigmatize the use of medical marijuana or make assumptions about an employee’s abilities, employers should approach an employee’s use of medical marijuana in the same way as the use of any medically-prescribed drug with intoxicating effects. That means that when an employee requests accommodation involving the use of medical marijuana, these requests should be taken in good faith.
Similar to tackling any disability management issue, employers should make the necessary inquiries by requesting prognosis information and considering the accommodation request on a case-by-case basis based on the medical information provided.
We often remind employers to request proof of a doctor’s prescription, for example, or contact the prescribing doctor for more information on the specific times of use, duration of treatment and the effects of consumption on the ability to perform job functions safely and effectively. Remember that employers are entitled to prognosis information about an employee’s abilities and limitations in order to meet the requirements of their job under the Code, as well as the employer’s obligation to take every precaution reasonable in the protection of employees under the Occupational Health and Safety Act.
Requesting prognosis information can also manage the unfettered use of the substance during working hours and/or on company premises, which is a common employer concern, particularly where the employee may be in a safety-sensitive position or work environment.
On a final note, the newly elected federal Liberal government has pledged to “legalize, regulate and restrict access to marijuana.” While the consumption and incidental possession of marijuana may no longer be crimes, there is no right to be impaired at work. Similar to policies relating to the consumption of alcohol in the workplace, employers should ensure they have clear workplace policies prohibiting the non-medical use of marijuana in the workplace and clearly outlining the consequences of employee impairment as a result of such non-medical use.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.
