Pot-reliant employees’ rights should be recognized without ‘undue hardship’

Despite shifts that favor medical marijuana, workers that use the substance will not get a totally free pass

Pot-reliant employees’ rights should be recognized without ‘undue hardship’

While recreational use of marijuana remains controversial, individuals who need it for medical purposes have gotten leniency from the courts. However, they are only allowed “reasonable access” to a legal source, which means that the use of the substance is a limited privilege. Health care practitioners are the primary gatekeepers in authorizing its medical use, but employers can also impose some limits.

“Employers are obligated to accommodate employees with a disability, so long as it does not create undue hardship for the employer,” said Sophia Souffront and Michael Blinick of McCague Borlack LLP in their commentary Medical Marijuana: Considerations for Employers. “This duty of accommodation includes the treatment that follows the disability.”

In the piece published by Mondaq, Souffront and Blinick noted that since medical pot can cause physical and cognitive impairment, it should be regarded in the same way as other prescription drugs: “[A] prescription for medical marijuana does not entitle an employee to be impaired at work or to compromise the safety of others.” Current workplace policies that balance the need to accommodate medical prescriptions against safety and productivity should be echoed.

“Employers have been found to have a duty to ask the employee whether the medication [they use] affects job performance,” they continued. After reviewing existing policies, employers should implement protocols to assess whether marijuana affect’s the employee’s ability to safely and effectively do their job. The assessment should be done on a case-by-case basis with the employee’s health practitioner to properly define the term “impairment” and determine the employee’s level of productivity while under the influence. Depending on the results, an employee may be granted a change of duties or work schedule, or allowed a leave of absence or disability benefits.

The form of marijuana consumed should be considered too. Since smoking can lead to passive inhalation, any initiative to foster a smoke-free environment could conflict with a patient’s right to choose how they take their medication. “[E]mployers should consider implementing a policy to accommodate employees who seek to medicate at work through consumption in its various forms,” the authors said. Drug-testing policies should also be updated with exemptions and guidelines for medical pot use; medical users should know the consequences of sharing prescriptions with other employees.

Generally, the requirement to accommodate prescription drugs only extends up to the point of “undue hardship,” which under section 15(2) of the Canadian Human Rights Act is limited to health, safety, and cost considerations. If an employer claims undue hardship, they have to provide a carefully documented file as evidence and protection against potential claims for discrimination.

“While there is no doubt that the law will shift over the next few years and litigation will eventually clarify the uncertainties surrounding medical marijuana, employers should prepare by implementing best practices and policies,” the authors said.

Related stories:
Employee plan must cover pot prescription, rules human rights board
Canadian campus council exploring options for cannabis coverage