Do you use medicinal cannabis, to manage a medical condition?
Are you an employer with an employee that uses medicinal cannabis?
Do you wonder what your rights are?
It is not as simple as an employee providing a doctor’s note, and then expecting the employer to accommodate marijuana use, even though it is for medical purposes.
Cases in this rapidly evolving area are very fact specific and must be analyzed individually.
Some commonalities are emerging, though.
Drug and Alcohol Policies, OH&S, Reporting
Many employers now have drug and alcohol policies. These sometimes provide for certain types of drug and alcohol testing. They also typically require employees to disclose any use of medications that could impact on the employee’s ability to safely perform his or her duties. If the policy has been updated, it likely includes medicinal cannabis in the reporting requirements. Such disclosure requirements are generally legal, especially for employees who may perform safety-sensitive activities.
Employers also have obligations under the British Columbia Occupational Health & Safety Regulation to ensure the health and safety of their workers.
Workers have an obligation to inform a supervisor or the employer of any physical or mental impairment “which may affect the worker’s ability to safely perform assigned work.”
An employee who may perform safety-sensitive activities and is required to report use but fails to do so may in some cases be dismissed, with just cause. This means no severance.
Employers should be aware that employees who consume cannabis for medicinal purposes may use higher amounts, and use more regularly, than those who consume recreationally.
Federal regulations allow medical users to possess a maximum of the lesser of 150 grams or a 30 day supply of dried cannabis, plus the 30 grams allowed for non-medical purposes.
If you are an employer and have not already done so, develop a drug and alcohol policy, in consultation with a lawyer experienced in employment law and an experienced occupational health professional, with knowledge of this area.
Ensure your policy reflects legal cannabis. If you have safety-sensitive workers, it is likely wise to include drug and alcohol testing protocols.
Involve your work force in your efforts.
Do this before an issue arises!
After Reporting
As an employee, once you report your use of cannabis or medication to your employer, be prepared for a number of things to happen:
If you are in a safety sensitive role, expect to be quickly moved out of that role. This is generally legal, because of employers’ obligations to manage safety risks in the workplace.
- Expect questions to be asked. Your employer may engage in what might feel like a version of “20 questions”. Among other things, employers will often assess the frequency, extent and types of substances being used including, if cannabis, the strain. They will also seek information on your prognosis.
- Expect to be asked to provide your medical authorization. Your employer will likely inspect that document, and make a copy of it.
- Expect for your physician, the one who provided the authorization and any others who may be treating you, to be contacted and questioned.
- You may be asked to attend a medical assessment.
As an employee, do you have to cooperate with these requests? Generally, yes, at least up to a point. This is because If you are requesting accommodation, you generally have an obligation to cooperate with the employer’s attempts to accommodate you.
As an employer, do you need to go through all of this? Sometimes. These are practical and wise steps to take, in many cases.
Generally, an employer has a responsibility to understand certain aspects, including the employee’s prognosis, the potential impact on the employee’s ability to do his or her job, and any work restrictions that may be required.
If you receive a request from an employee to accommodate medical marijuana, be methodical. Strive to fully understand the employee’s situation. Then, determine if and how you can accommodate it.
Seek Experienced Legal and Medical Advice
Whether you are an employee or an employer, this is an area in which it is crucial for you to get advice from an experienced lawyer, and an experienced occupational physician or other occupational health professional, in all cases with knowledge of medical cannabis as it relates to work.
The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca.
