The following content is provided for general information and/or educational purposes only and does not constitute legal or other professional advice or a legal opinion of any kind.
There are approximately 235,000 registered medical cannabis users presently in Canada and this is expected to increase to 450,000 by 2021. Approximately 22% of Canadians use recreational cannabis (illegally) today and this expected to increase to 39% after legalization. This article will discuss how employers should handle both medical marijuana (MM) and recreational marijuana in the workplace from a policy perspective.
For an introduction to medical marijuana on benefits costs and plan design options see our article "Part 1: Medical Marijuana 101”
Medical Marijuana in the Work Place and the Duty to Accommodate
As required by provincial and federal human rights legislation, employers have a duty to accommodate disabled employees in the workplace. Employers must accommodate, to the point of undue hardship. The definition of “undue hardship” varies but does not mean inconvenient or annoying, it requires objective evidence related to cost and health and safety. The duty to accommodate extends to medical marijuana and employees are to be accommodated in the same manner as other disabled employees who have been prescribed medication. Accommodation is also required for employees who may have an addiction disability.
The duty to accommodate does have limitations. A prescription for medical marijuana:
- Does not entitle an employee to be impaired at work
- Does not entitle an employee to compromise his or her safety, or the safety of others
- Does not entitle an employee to smoke in the workplace. Smoke-free laws apply to smoking marijuana in the same way they apply to regular cigarettes and tobacco
- Does not entitle an employee to unexcused absences or late arrivals
Although employers have a duty to accommodate disabled employees if they are prescribed medical marijuana, there is no legal requirement for employers to cover cannabis under health and welfare plans. This was challenged in a key human rights case in Nova Scotia; Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund. MM was not covered under the Welfare Trust and initially (February 2017) the judge ruled that non-coverage of medically necessary drug may amount to discrimination and found the complainant was discriminated against when he was denied coverage for MM by the trustees. However, in April 2018 the Nova Scotia court of appeals overturned the decision.
“It could not be automatically discriminatory for the trustees (of the plan) to impose reasonable limits on reimbursable benefits,” the three-judge panel said.
“Mr. Skinner has access to all the medications available to any other eligible plan member. Mr. Skinner experienced an adverse impact because those medications were not effective for him personally – not because he fell within a protected group described in the Human Rights Act.”
Recreational Marijuana in the Workplace
Legal does not mean acceptable in the workplace or without risk/responsibility. There is no duty to accommodate recreational cannabis use.
A zero-tolerance cannabis policy is problematic in the workplace due to employers’ duty to accommodate. A zero-tolerance policy could cause discrimination against employees who use cannabis to treat or relieve the symptoms of a disability. To confidently enact a zero-tolerance policy, employers would have to be prepared to establish that sobriety is a bonafide occupational requirement (BFOR) if anyone brought a human rights case against them. Many argue that safety-sensitive workplaces have BFOR and should therefore allow for zero-tolerance policies.
Employers should enact a clear drug policy that includes the definition of “impairment” in a way that captures medical marijuana use and when/where it is acceptable. Policies on drug use must define what it means to be impaired and provide details on how the policy applies to medical cannabis. Any prescription drug policies should be enforced in a uniform manner to ensure that medical marijuana is treated equally with other prescriptions.
The policy should clearly indicate the organization’s position regarding whether employees are not to use, possess, or be under the influence of substances while at work. Prevention initiatives should also be included.
It is important to tailor the policy to meet the specific needs of the workplace. Elements of the policy could include:
- statement of the purpose and objectives of the program
- definition of substance use, and substance dependence
- definition of what the employer considers to be impairment
- statement of who is covered by the policy and/or program
- statement of the employee’s rights to confidentiality
- a mechanism for employees’ to confidentially report when they have been prescribed a medication that may cause impairment
- statement regarding if either medical/therapeutic or non-medical substances are allowed on the premises, or under what situations they would be allowed
- that arrangements have been made for employee education (e.g., a general awareness regarding substance-dependence)
- that arrangements have been made for educating and training employees, supervisors, and others in identifying impaired behaviour and what steps will be taken
- provisions for assisting those with a substance dependence
- processes for accommodation, and return to work/remain at work planning
- if applicable, statement of under what circumstances substance testing will be conducted, as well as the criteria for testing and interpretation of test results
- provision for a hierarchy of disciplinary actions
We often think of substance use in terms of addiction or dependence, but the use of substances can fall anywhere on a spectrum and, at any point, may impact workplace performance and safety. (Mental Health Commission of Canada, et al., no date)
The employer should develop a clear statement of what is considered to be impairment within their workplace. For consideration, the Canadian Human Rights Commission (2017a) uses the following characteristics as they relate to changes in an employee’s attendance, performance or behaviour:
- Personality changes or erratic behaviour (e.g. increased interpersonal conflicts; overreaction to criticism)
- Appearance of impairment at work (e.g., odour of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, poor coordination)
- Working in an unsafe manner or involvement in an accident
- Failing a drug or alcohol test
- Consistent lateness, absenteeism, or reduced productivity or quality of work
Supervisors and employers must enforce policies and programs in a fair and equal manner. Supervisors should be educated and trained regarding how to recognize impairment. In most cases, when assessing an individual for impairment, it is suggested that a second trained person be present to facilitate an unbiased assessment.
Note it is not the role of the supervisor or employer to diagnose a possible substance use or dependency problem. Their role is to identify if an employee is impaired, and to take the appropriate steps as per their policy.
In addition to the above, employers should take the following steps:
1. Be proactive: Ensure HR policies and procedures address what is (and is not) acceptable in the workplace ahead of legalization.
2. Communicate these policies and procedures clearly, early and often. Employers may also wish to educate employees on the effects and risks of cannabis, educate managers on identifying impairment/abuse, and appoint an HR lead to address cannabis issues.
3. Be reactive: Ensure your policies and procedures stay in tune with your workplace and the changing landscape. E.g. Cannabis is no longer covered by an “illegal or illicit” drug policy.
For more information regarding marijuana in the workplace and how it may impact your organization and benefit plan contact Benefit Consultants Inc. at firstname.lastname@example.org or call 1.800.667.2973
Shepell - rEAP Benefits Presentation: Cannabis in the Workplace