While it remains illegal without a prescription, marijuana has been legal in Canada for medical purposes since 2001.
Back in 2014, I wrote about the risks of medical marijuana use in the workplace. At that time, I addressed the duty to accommodate as it is required by both provincial and federal human rights legislation.
Duty to Accommodate.
While the duty to accommodate is not limitless, a prescription for medical marijuana doesn't:
- entitle an employee to be impaired at work;
- entitle him to compromise his/her safety or the safety of others;
- entitle him to smoke in the workplace;
- or to allow excuses for absenteeism.
The duty to accommodate employees prescribed medical marijuana should mirror how any other disabled employee who has been prescribed medication is to be treated.
Just as with another disabled employee who requires accommodation, the employer must consider measures that may involve moving the employee out of a safety-sensitive position, providing more frequent breaks, altering the employee's duties and possibly providing more frequent breaks or a private space to administer his/her medication.
Revisit workplace policies.
Medical marijuana can be used to treat cancer, HIV/AIDS, multiple sclerosis, depression and more. As a result, more physicians will likely prescribe medical marijuana to their patients. What may not be well understood is that there are several strains of marijuana that have limited or no psychoactive effect. Regardless, employers will be tasked with the implications of marijuana use in the workplace. Now may be a good time to revisit workplace policies while paying particular attention to drug and alcohol use and the consequences associated with impairment at work as well as fitness for duty. In so doing, it will be helpful to involve health and safety committees, unions and other key stakeholders in the policy review process.
Revising policies might not necessitate a complete overhaul, but rather a closer look at whether the current wording might contravene the duty to accommodate when held up against the lens of a worker who has been prescribed medical marijuana. This may require a revision to a smoke-free worksite policy. It may also require allowing an employee more frequent breaks, having a safe and secure place for the employee to lock away his medical marijuana and designating locations where the employee can take his medication out of public view.
If there is any doubt or concern about existing policy wording or suggested changes, it is advisable to seek legal guidance and clarification. Once the policy has been approved, employees need to have the policy communicated to them and front-line supervisors need to be trained on medical and non-medical use of marijuana in the workplace.
Depending on the industry, different implications might influence the interpretation of such policies. For example, there might be more stringent outcomes for a manufacturing company where heavy machinery is operated than for a tech startup or professional consulting firm. The test is to determine if the medication alters the employee's judgement or makes the workplace at risk of being unsafe.
Substance abuse is costly.
Back in 2006 when the latest data was available, the Canadian Centre of Substance Abuse reported a $40 billion price tag to the Canadian economy due to substance abuse. With greater frequency, companies from every industry are looking to establish policies that help them keep productivity goals in their line of sight while ensuring a safe work environment.
Seek medical documentation.
Employers are able to seek medical documentation to ensure their employees are able to safely carry out their duties. If it is determined that there is a meaningful impairment, whether due to medically prescribed marijuana or any other prescribed medication, the employer has the opportunity to carefully assess the situation.
Employers aren't obligated to allow employees to carry out their jobs while impaired. They may ask employees to complete workplace accommodation forms and secure information about the condition that requires medically prescribed marijuana as well as the dosage and if the employee needs to take the medication while at work. Employers may want to look at *testing for impairment and testing methods that show an arms length approach via an independent medical examination (IME). *At present, Canadian Human Rights law doesn't allow pre-employment or random drug or alcohol testing for impairment.
Addressing pre-existing notions.
The challenge with an employer's readiness to accommodate might perhaps be related to the stigma or pre-existing notions associated with marijuana and 'getting high' at work. As time progresses, employers will face the implementations of their actions and those of their employees regarding the issue of medical marijuana usage in the workplace. It may create more litigious situations based on the interpretation of discrimination and the duty to accommodate.
Insurers and service providers are now being asked to cover medically prescribed marijuana just as they would other physician prescribed medication for their patients. Some insurers, but not all, have chosen to cover marijuana prescriptions.
As the interpretation of what is covered continues and while uncertainties exist regarding medical marijuana in the workplace, we are here to offer our insights regarding these and other HR and benefits-related issues. We invite you to contact us. We're here to help so that you can focus on what you do best.
There are new obligations for Ontario employers coming this September which are sure to keep many Human Resources professionals busy in the coming weeks creating or updating their company's anti-sexual harassment policy.
Why? As of March 8, 2016, Bill 132 received Royal Assent at the legislative Assembly of Ontario making it clear that sexual harassment is a workplace safety issue. As there have been an increasing number of high profile sexual harassment cases in the media in the last 12 months, it is no wonder that the Ontario Government has pushed their sexual violence and harassment action plan through the political engine at such an expedited pace. One of the biggest changes is that the Act amends the Occupational Health and Safety Act (OHSA) and requires employers to take action at the beginning of September.
* Bill 132 expands on Bill 168 (introduced in 2010 -- obligating employers to create workplace violence and harassment polices and programs to protect workers.) Bill 132 protects workers from sexual harassment in that the definition has been broadened to include "workplace sexual harassment".
The definition reads:
"engaging in a course of vexatious comment or conduct against a worker in the workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome."
Here's the quick run down of what employers with 5 or more employers need to ensure is in place by September 8, 2016:
* Someone in the organization needs to receive training on investigating workplace harassment complaints;
* All supervisors need to be trained on workplace harassment so they can identify "incidents and complaints" of workplace harassment or the Ministry of Labour may be in a position to order an investigation by an outside investigator at the company's expense;
* the organization needs to prepare a policy specifically addressing investigations and related procedures to comply with Bill 132 or they need to amend their current policy to do so. Of particular note, the investigator's mandate must be clear and determined upfront given the results of the investigation must be disclosed to the person who has been allegedly harassed.
* Employers will now be obligated to develop a written program to respond to issues of harassment and sexual harassment in the workplace. If they already have a program and policy in place, they need to review it at least annually. The program must include the following:
1) measurers for reporting incidents of workplace harassment to a person other than the employer/supervisor if the employer/supervisor is the alleged harasser;
2) detail how incidents or complaints of workplace harassment will be investigated and handled;
3) detail how information about an incident or complaint of workplace harassment won't be disclosed;
4) detail how the alleged victim and harasser (if a worker) will be informed of the investigation results and any corrective action arising from the investigation;
Of note, the Ontario Ministry of Labour's inspectors will now have the power to order an employer to use a third party to investigate a workplace harassment incident and to issue a written report at the employer's expense.
Our team will continue to monitor Bill 132 in light of any further guidelines. For more information, 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.