It is estimated that 500,000 Canadians use marijuana for medical purposes and with the passing of the new Medical Marihuana Access Regulations, those who require it for medical purposes need only secure a doctor's prescription. They no longer need a licence from Health Canada.
An employee doesn't have the right to use medical marijuana wherever and whenever he or she wishes in the workplace. Both the employee and employer have specific obligations. Medical marijuana has the same principles of accommodation as other attending physician prescribed drugs. If any employee uses medical marijuana to address symptoms relating to a chronic disease or other medical condition, the employer has a duty to accommodate.
Section 5.1 of the Ontario Human Rights Code mandates that an individual has the right to equal treatment with respect to their employment without discrimination on the grounds of "disability". This duty to accommodate applies to the point of undue hardship for the employer. The test for undue hardship considers three factors:
1) the cost of accommodation;
2) whether or not there is any outside funding to help subsidize the costs of accommodation and;
3) are there any health and safety concerns the accommodation may pose.
Ontario's Occupational Health and Safety Act (OHSA) is another governing body that has placed requirements for employers relating to medical marijuana in the workplace. The employer needs to "take every precaution reasonable in the circumstances for the protection of a worker." Therefore, employees don't have the right to be 'impaired' in the workplace and where their 'impairment' might endanger their safety or the safety of other workers. The main issue for employers involves the consideration that even though an employee has a prescription for marijuana, they don't immediately have the right to use it where cigarettes are allowed. This points back to the potential risk to the safety of other workers. While medical grade marijuana is seen to be a pain reliever and doesn't get individuals high, there are some reports indicating that people react in different ways.
If an employee comes forward with a script from a doctor indicating that he or she has been prescribed medical marijuana, the employer should ask the employee for documentation that addresses his or her ability to safely carry out assigned duties.
Employees in safety-sensitive positions need to let their employer know if they are going to be using medical marijuana (e.g. drivers). Employers should create workplace policies to address the use of prescription medication in the workplace including the use of medical marijuana - particularly if there is a known side effect from taking the prescription. This documentation should clearly communicate the employee's entitlement and obligations when using it so that the employee understands when they fall under the scope of the policy, when the need to report the use of medical marijuana, and what the consequences are if they breach the protocol on reporting or using it.
Along with seeking legal advice, employers will benefit from consulting with their workplace health and safety committee when developing their policy. The policy should include the obligations for both employee and employer regarding accommodation as well as circumstances when drug testing may be appropriate.
Safety sensitivity is important in the workplace regardless of the type of prescription drug taken. For more information on this topic and considerations for the employer, please contact us. We're here to help so that you can focus on what you do best.
The changes in our aging workforce and the pressures placed on the sandwich generation, who have both elderly parents as well as children to care for, have placed increasing demands on the work and family life of Canadian workers.
Increasingly, families are struggling to juggle the pressures of the workplace as well as their caregiving duties. According to a Conference Board of Canada study in 1999, approximately 46% of Canadian workers felt moderate to high levels of stress in balancing work and life responsibilities. This is an increase of 27% from 1989. Looking forward to 2014, the statistics in this regard continue to climb and the financial implication of family-related absences from work cost employers approximately $2.7 billion per year.
In many cases, female workers appear to be carrying the burden of this juggling act as primary caregivers. They report higher levels of time stress and rates of absenteeism at work than their male counterparts.
While the Ontario Human Rights Code interprets family status as protecting a range of families and familial relationships from discrimination, there are situations when this interpretation has been challenged. In a recent Federal court case in connection with a decision of the Canadian Human Rights Tribunal, the outcome turned in favour of the employee.
In the case of Attorney General v. Fiona Johnstone and Canadian Human Rights Commission, the Canadian Human Rights Act prohibits discrimination based on race, national and ethnic origin, colour, religion AND family status. In section 7b, the Act states that it is a discriminatory practice, directly or indirectly in the course of employment to differentiate adversely in relation to an employee, on the prohibited grounds of discrimination.
In the case of Fiona Johnstone, both she and her husband were employees with the Canadian Border Services Agency. The couple had two young children and were facing scheduling problems relating to childcare arrangements. Ms. Johnstone requested the opportunity to work three 13 hour day shifts to allow her to continue to work and be considered a full-time employee. The benefits of a full-time employee were significantly better than those offered to a part-time employee. Her employer declined the request citing that they had no legal obligation to accommodate her childcare responsibilities. The employer didn't indicate that such a change would cause undue hardship.
The Federal Court of Appeal concluded that the employer discriminated against Ms. Johnstone on the basis of family status. The basis of this decision emphasized the fact that family status includes childcare responsibilities. The Court stated that a broader interpretation to the definition of family status must be given and that many parents wouldn't be able to participate in the workforce otherwise. The Court indicated that parents cannot neglect their childcare obligations without creating a legal liability. A parent cannot leave a toddler unattended in a home and must provide proper supervision and protection for their child or children. This doesn't include personal family choices such as family trips, extra-curricular sports, and other activities.
To help employers understand what may constitute discrimination under "family status", the Court provides a two stage test:
1) a prima facie case of discrimination must be made out by the complainant; and
2) a shift in onus to the employer to show that the policy or practice is a bona fide occupational hardship, and that accommodation would amount to undue hardship for the employer.
For a prima facie case of workplace discrimination pertaining to childcare obligations, the four factors that must be proven by the complainant include
1) that a child is under the employee's care or supervision;
2) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
3) that the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such solution is reasonable accessible; and
4) that the impugned workplace rule interferes with the fulfillment of the childcare obligation in a manner that is more than trivial or insubstantial.
There are more details to the ruling on this case. For additional specifics, please contact us. We're here to help so that you can focus on what you do best.
Dave Dickinson, B.Comm, CFP, CLU, CHFC
Experienced Benefits Specialist ready to optimize your group benefits and pension plans.