Written on behalf of Peter McSherry
Marijuana in the Workplace
The use of medical marijuana in an employment setting raises a conflict between the employee’s right to be protected from actions taken due to a medical condition and/or disability and the employer’s right and, indeed, its obligation to ensure a safe workplace to its staff.
Human rights law has recognized that there is no distinction between adverse treatment (i.e. discrimination) of an employee due to that employee’s disability, and any treatment which has been medically prescribed to remedy the disability. This means that the employer may not take offensive action against an employee who is medically required to administer medical marijuana during the work day.
As a result, the employer has a duty to accommodate this medical treatment to the point of undue hardship. This does not, however, mean that the employer cannot set down rules as to when and where the treatment is to be administered. The employer also has an obligation to ensure a safe workplace for its remaining employees.
It is acceptable, for example, for the employer to require that the disabled employee leave the workplace premises to smoke the marijuana, when it is administered in this manner.
The same rules applicable to any disability and the duty to accommodate will apply. The employer is entitled to supporting medical reports, to be provided proof of the need for the treatment, and to know of any apparent work limitations. The employer should also know of the prognosis, whether the condition is chronic, or one which is expected to be temporary and if so, the expected duration.
Where the disability is expected to be other than chronic, it is reasonable for the employer to be allowed medical updates over time. It is likely reasonable for the employer to also know the recommended frequency of the consumption of the marijuana and to be able to monitor this. In every case, the employee must co-operate with the accommodation process.
Liability for the Breach of Duty to Accommodate
Any actions taken by the employer in violation of these accommodation obligations will expose the company to considerable potential liability by a human rights complaint. The employee will have access to a wide range of potential remedies including damages for injured feelings in the expected range of $10,000 to $30,000, a claim for lost income to the date of hearing, and reinstatement. Where reinstatement is not ordered, there could also be a claim for the loss of future expected earnings beyond the hearing date.
Conversely, the failure of the employee to be co-operative in the accommodation process will lead to a defence to the employer and justify a refusal to allow for termination or other actions.
The expected reform to federal law to take effect in the summer of 2018, allowing for recreational use of marijuana, will raise additional issues. It is clear that the employer has every right to deny the use of marijuana at the workplace in this context. The more difficult question is whether the company has the right to conduct random drug testing. The general view is that such testing is prima facie discriminatory (i.e discriminatory on its face), but may still be allowed for safety sensitive positions (such as a bus driver, heavy equipment operator, or similar) or for “reasonable cause” relating to past drug use. Suncor has involved in an ongoing legal challenge to its policy requiring such random tests. The most recent decision has upheld the company’s right to do so based on the same workplace safety issues.
This fits into the general guidelines for such an employer policy, by showing that the questioned policy (1) has a rational job related purpose, (2) was effected in good faith (3) and was required to accomplish a legitimate work-related purpose, with consideration shown to the nature of hardship suffered by the employer in providing other forms of accommodation.
What Does All This Mean?
If you are a user of medical marijuana to treat a medical disability and are experiencing issues with respect to your use of this treatment in your workplace, you should seek immediate legal advice from an experienced employment lawyer who focuses on helping employees.
Should you find yourself in such a difficult position, get advice before you take any action at work. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to discrimination and if so, what remedy to seek. Contact us online or by phone at 519-821-5465 to schedule a consultation.