Medical marijuana in the workplace: a diagnosis for employers

The number of licences granted to possess medical marijuana in Canada more than doubled in 2012, from under 14,000 in January to over 28,000 in December. Upcoming changes to the way it is approved suggest these numbers will continue to grow.

The use of prescribed marijuana by employees creates new questions for Canadian employers. How do you deal with an employee in a safety-sensitive role who has a medical marijuana licence? Are employees with medical marijuana licences exempt from drug testing? If an employee with a licence says they need to use their marijuana at the workplace, how is this addressed?

The legal framework

Medical marijuana is controlled in Canada through the Marihuana Medical Access Regulation (MMAR), under the Controlled Drugs and Substances Act, established by Health Canada. It came into force in July 2001 and originally licensed marijuana use for end-of-life care and severe pain, including from cancer or HIV/AIDS infection.

But the MMAR is changing, effective March 31, 2014. One of the biggest changes is that licences will no longer be granted by Health Canada as they are now—and physicians will go from declaring medical conditions to effectively begin prescribing medical marijuana.

Its use in the Canadian workplace has been addressed by the courts (to a degree), but more case law can be expected. This is still a new issue for employers and employees. The federal government has also just said it is looking carefully at allowing police to ticket people who possess small amounts of marijuana, rather than criminally charge them.

What does this mean for the workplace?

Canadian employers need to know that:

• A licence for medical marijuana is not a licence for impairment in the workplace.
• Employees with a licence should be treated like any other employee with prescription medication that could affect their ability to carry out their duties of employment.
• The regular principles around duty to accommodate apply.
• Employers can set limits if the employee says they need to smoke on the job.
• Employer action will vary depending on whether employee is in a safety sensitive position.

For a safety sensitive position, an employer must make further inquiries of the employee to determine if the employee can be accommodated. It may be prudent to place the employee on a paid administrative leave for medical reasons pending completion of inquiry or place the employee on alternate duties which are not safety sensitive.

For employees in both safety sensitive and non-safety sensitive positions, the employer may be in a position to request a medical review or an Independent Medical Examination (IME) to see if the employee can be accommodated and what kind of accommodation is required.

The future of medical marijuana in the workplace

Employers in Canada can expect this to become a more prominent issue in the workplace for a number of reasons:

• It is likely that physicians will continue to become more comfortable with authorizing and/or prescribing marijuana for medical reasons.
• The number of employees with licences should continue to rise.
• Requests by employees for coverage of medical marijuana through health benefit plans and/or health spending accounts.
• Requests by employees for coverage of medical marijuana through workers’ compensation programs.

Proactive steps for employers

Employers can get ahead of the matter by re-examining their workplace drug and alcohol policies. They should look at the wording around prescription and non-prescription medication. The policy should:

• Be broad and/or specific enough to include medical marijuana.
• Explain acceptable use of prescription and non-prescription medication.
• State when reporting of prescription and non-prescription medication is required.
• Clarify that the consequence of failing to report can result in disciplinary action, up to and including termination.

While medical marijuana is a new and sometimes controversial issue, employers need to remember it is generally no different than other kinds of prescription medication. Just as it is unacceptable for an employee to be impaired on the job by taking pills, impairment due to prescribed marijuana should not be tolerated if it impacts upon the core duties of the employee.