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Weed in the Workplace: Accommodating Without Getting Burned

This article originally appeared in The Lawyer’s Daily.

With medical recognition of marijuana as medication, growing social acceptance of the recreational use of marijuana in the same manner as alcohol, and our federal government’s stated intention to legalize recreational usage, there is no doubt that we will be seeing more issues relating to marijuana in the workplace. In that regard, employers should never react based on stereotypes of marijuana users. Rather, employers (and employees) must recognize that there are different types of users, and each one raises its own set of issues. Some will be entitled to accommodation, and others will not. Even when accommodation is required, there is no need to panic: no law will permit employees to work while impaired if doing so poses a safety risk to them or others.

There are four types of users that employers may have to deal with:

  • Casual/Recreational
  • Addicts
  • Self-Medicators
  • Prescription users

Casual/Recreational Users

Who Are They?

These individuals use marijuana casually or socially, just as people drink alcohol. To many employers, the idea of an employee using marijuana is taboo. In reality, marijuana use has been common for years amongst a variety of people, young and old. As societal norms evolve, it will only become more common in the coming years.

What Are Employers Required to Do?

The Federal Government of Canada has announced full-blown legalization of recreational marijuana by July 1, 2018. Like alcohol, marijuana should never be allowed to interfere with an employee’s duties. Unless an addiction exists, there is no requirement to accommodate such an employee.

Addicts

Who Are They?

An individual whose marijuana use is fuelled by an addiction and is beyond their control. Addiction is recognized as a disability by human rights legislation.

What Are Employers Required to Do?

In this case, the employer’s duty to accommodate is triggered. Unless there is a bona fide occupational requirement, an employer must accommodate up to undue hardship – a significant threshold to be assessed on a case-by-case basis. Factors will include cost and, particularly in this context, safety concerns. Employers should avoid making any decisions in haste or rushing to dismissal, as a failure to accommodate can expose them to significant liability.

Self-Medicators

Who Are They?

Those who use marijuana for medical purposes, such as pain relief, without a formal prescription. They fall between prescription users and casual/recreational users on the “spectrum”.

What Are Employers Required to Do?

The BC Human Rights Tribunal case of French v. Selkin Logging is instructive. The Tribunal found that regardless of a prescription, an employer’s refusal to consider accommodation of medical treatment can be discrimination, including medication such as medical marijuana. However, in the absence of a prescription, it may be impossible for an employer to accommodate.

Prescription Users

Who Are They?

In 2014, the Marihuana for Medical Purposes Regulations were amended so that those in need of medical marijuana to treat a health condition could obtain a prescription from their doctor for that purpose. Employees who have obtained a prescription from their doctor for marijuana use, and require it to treat a medical condition, fall in this category.

What Are Employers Required to Do?

Employees bear the onus to come forward with a request for accommodation. This disclosure triggers an employer’s duty to accommodate that employee’s disability under human rights legislation. Employees must participate in the accommodation process by providing sufficient information to allow the employer to assess the need and options for accommodation. This includes analyzing whether accommodation is possible without undue hardship.

Employers cannot request extraneous information, such as a diagnosis, but are entitled to details of the limitations on the employee’s ability to carry out their job functions. The employer should consult the employee and their doctor to develop an accommodation plan.

Conclusion

When dealing with marijuana in the workplace, one size does not fit all. Some users will not be entitled to any accommodation at all, while others will be entitled to significant accommodation. Employers should avoid hasty reactions or responses based upon stereotypes, as these can easily expose them to legal liability. Since this issue will become more prevalent as time moves on, any employers or employees needing further guidance regarding their respective obligations and rights should contact an employment lawyer.

Please join us for a Google Hangout on this topic on Thursday, April 25th at 11am EST. Register now.

By Stuart Rudner and Richa Sandill


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