Medical marijuana presents challenges for employers

Marijuana in the Workplace: Just Because it’s Legal Doesn’t Make it Safe

Dec 4, 2018

Recreational marijuana has been legal in Canada for more than a month now.

But employers still have many questions about how best to promote the health and safety of their workplaces in this new paradigm:

  • To what extent can or should employees be prohibited from partaking?
  • How should they deal with marijuana in the workplace?
  • Are they obligated to accommodate medical marijuana?

Impairment in the workplace risks the health of both the consumer and everybody they work with. Managing this new challenge should be a priority for Canadian employers.

Can Employees Consume Recreational Marijuana in the Workplace?

Just because recreational marijuana is legal doesn’t make it a free-for-all. Employers are free to prohibit alcohol in the workplace, and so too can they marijuana.

If an employer has yet to build it into their formal policy documentation, they might want to get on that to have it in writing and know that all their employees understand the rules. Impairment from marijuana — whether from actively consuming it in the workplace or remaining from a previous use, is something that employers do have an obligation to prevent insofar as it intersects with the responsibility to run a safe workplace.

Can Employers Completely Prohibit Recreational Marijuana Use with its Employees?

Some employers are certainly trying. Air Canada and WestJet both announced a complete ban on recreational marijuana for certain categories of employees, both in their off- and on-duty time. However, Unifor, a union representing such employees, has indicated they may take employers to court over this.

Similarly, Calgary’s police force has announced a blanket ban, even as many others have not. The extent of what might legally be permissible may be cloudy at the moment, but employers should take careful note of the obligations of safety-critical employees and seek legal advice if they’re unsure. For many professions, such as oil and gas, trucking, and anywhere involving heavy machinery, this could be a discussion that takes significant time to sort out — but that may not necessarily mean you must take on unacceptable risk in the meantime.

Medical Marijuana — And the Duty to Accommodate

Where an employee claims the right to consume medical marijuana to treat a disability, an employer may find themselves bound to accommodate that. But only to an extent.

As with any duty to accommodate, it must be balanced with the employer’s obligation to provide a safe workplace for all of its employees — hence employers may require that consumption happen outside, a reasonable distance away from entrances to the business.

And impairment is still an issue. An employee whose obligations require operation of dangerous machinery cannot be allowed to do so impaired. That’s going to affect their own safety and the safety of everyone else around them.

If an employer’s having trouble striking a safe, responsible balance, what they may be able to do in a medical marijuana case is request an independent medical examination to assess whether and to what extent the medical marijuana may be necessary.

What they’re telling you, or their doctor, may not be the whole story. An independent medical examination can help reveal a deeper picture of what’s going on and may catch things that the prescriber missed — perhaps, the medical marijuana is a sign of medicalization. If accommodating medical marijuana use is becoming too much of a burden, getting an independent opinion on the necessity could make all the difference.

Western Medical Assessments specializes in providing expert medical advice to employers who need verification and assurance on the nature of workplace issues involving injury and illness. If you’re ever struggling to manage an employee with medical needs, you’ll want to start here to get all the details you need to maintain a safe, productive workplace.

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