In the last few years, statistics show that an increasing number of licences to possess medical marihuana have been granted, and with the recent changes to the federal legislation, this number is very likely to keep growing.
One of the many issues to be considered in the wake of these changes is the impact on the employment sphere: How should employers deal with employees who use prescribed marihuana in the workplace? What measures should be put in place? Should parameters be set in order to supervise the use of medical marihuana in the workplace?
The Legal Framework
Beginning in 2001 in Canada, medical marihuana was controlled through the Marihuana Medical Access Regulations (MMAR), under the Controlled Drugs and Substances Act, as established by Health Canada. Originally, licensed marihuana was used for end-of-life care and severe pain (including cancer and HIV/AIDS infection). An individual who could establish a medical need through consultation with a medical practitioner was allowed by the MMAR to possess marihuana and to get a licence for “personal-use production” of marihuana.
Since March 31, 2014, under the Marihuana for Medical Purposes Regulations (MMPR), licences are no longer granted by Health Canada. Practitioners, who previously had the role of declaring medical conditions, are now enabled to prescribe medical marihuana.
Employees who possess licences to use medical marihuana must provide their employer with a medical document attesting he is authorized to use medical marihuana. Such a document ought to be provided by a health care practitioner to a person who is under their professional treatment and must indicate:
- The practitioner’s given name, surname, profession, business address and telephone number, facsimile number and email address, if applicable, the province in which the practitioner is authorized to practice their profession and the number assigned by the province to that authorization;
- The person’s given name, surname and date of birth;
- The address of the location at which the person consulted with the practitioner;
- The daily quantity of dried marihuana to be used by the person, expressed in grams; and
- The period of use which must be specified as number of days, weeks or months, which must not exceed one year.
Under the MMPR, there is a maximum daily amount of medical marihuana a person may possess, being the lesser of 150 grams or 30 times the daily amount specified in the medical document.
Employers and employees should know that a licence for medical marihuana is not a permission to be impaired in the workplace – an individual having a prescription for medical marihuana has a medical condition which qualifies him as under disability, just like another employee taking any other type of medication. Therefore, not only do the usual principles attached to the duty to accommodate apply, but employers should find a way to include the use of medical marihuana in their workplace drug and alcohol policies and apply the relevant measures already in place for prescribed medication by way of analogy, with the appropriate modifications. Note that an employee who is caught smoking marihuana in the workplace without having the appropriate licence attesting he is authorized to do so may trigger both disciplinary consequences and penalties.
Another element to consider is whether the workplace itself or the nature of the employee’s tasks is a safety-sensitive aspect of the employment. If it is, the employer should establish clear rules as to the use of medical marihuana in certain conditions. For example, the use of marihuana in workplaces where chemicals and highly sensitive products are present (factories, shipyards, construction sites, etc.) can be problematic since the use of an ignition device and/or smoke may trigger explosions, burning and other physical consequences for the site as well as the workers in the area. Another example of a safety-sensitive workplace is one where there are individuals vulnerable to exposure to marihuana smoke, such as a hospital, daycare, school or other facility serving the elderly, children and people who are ill, who could experience a disproportionate reaction to the marihuana smoke.
Even though employers may need to take proactive steps in order to regulate and manage the use of prescribed medical marihuana in the workplace, the law already imposes a legal framework that establishes certain parameters in that regard. According to the Quebec Regulation under the Tobacco Act, “for the purposes of theTobacco Act, any product that does not contain tobacco and is intended to be smoked is considered to be tobacco” (emphasis added). Therefore, the provisions contained in the Tobacco Act (Act) are applicable to the use of prescribed medical marihuana in the province of Quebec, and certain restrictions apply, notably regarding the places where smoking is allowed. Thus, the employees concerned would have to comply with these regulations, regardless of the employer’s guidelines on that matter. According to section 2 of the Act, smoking is prohibited in many enclosed spaces, and we underline that workplaces, among other spaces, are designated as smoking-free areas (except for a workplace situated in a dwelling, according to paragraph 9):
2. Subject to sections 3 to 12, smoking is prohibited in the following enclosed spaces:
- facilities maintained by a health and social services institution governed by the Act respecting health services and social services or the Act respecting health services and social services for Cree Native persons, and premises where services are provided by an intermediate resource referred to in the Act respecting health services and social services, except if the premises are situated in a dwelling;
- premises or buildings placed at the disposal of a school established under the Education Act or the Education Act for Cree, Inuit and Naskapi Native Persons, and those placed at the disposal of a private educational institution governed by the Act respecting private education that dispenses services specified in paragraphs 1 to 3 of section 1 of that Act;
- premises or buildings placed at the disposal of a vocational training centre or adult education centre established under the Education Act, those placed at the disposal of a private educational institution dispensing services specified in paragraphs 4 to 9 of section 1 of the Act respecting private education, and those used by a general and vocational college or a university;
- facilities operated by a childcare centre or day care centre within the meaning of the Educational Childcare Act and private residences where home childcare within the meaning of that Act is provided, during the hours when childcare is provided;
- enclosed spaces where activities of a sports or recreational, judicial, cultural or artistic nature are presented, or where conferences, conventions or other similar events are held;
- enclosed spaces where community or recreational activities intended for minors are held, except if the activities are held in a dwelling;
- enclosed spaces where the activities held may be attended only by persons explicitly or implicitly invited or authorized by the host, whether or not an admission fee is charged and regardless of the purpose of the activities, except if the activities are held in a dwelling;
- enclosed spaces used by a non-profit legal person or by an association, circle or club, whether a legal person or not, to which only members and their guests have access, except if the enclosed spaces are situated in a dwelling;
- the common areas of residential buildings comprising six or more dwellings, whether or not the buildings are held in co-ownership;
- the common areas of private seniors' residences within the meaning of the second paragraph of section 346.0.1 of the Act respecting health services and social services;
- enclosed spaces where prevention, assistance and support services, including temporary lodging services, are offered to persons in distress or persons in need of assistance, except if the services are offered in a dwelling;
- tourist accommodation establishments governed by the Tourist Accommodation Establishments Act and the buildings of outfitting operations within the meaning of the Act respecting hunting and fishing rights in the James Bay and New Québec territories;
- enclosed spaces specially laid out where meals for consumption on the premises are ordinarily offered to the public in return for remuneration;
- establishments operating under a public house, tavern or bar permit within the meaning of the Act respecting liquor permits;
- bingo halls;
- workplaces, except workplaces situated in a dwelling;
- means of public transportation, taxis and other vehicles carrying two or more persons that must be used in the course of employment;
- premises used for detention within the meaning of the Act respecting the Québec correctional system;
- all other enclosed spaces to which the public has admittance.
The Act contains further restrictions relating to certain areas where children and ill people are present, with the objective of protecting the vulnerable groups in society:
2.2. Smoking is prohibited outdoors within a nine-metre radius from any door leading to a place referred to in paragraph 1, 3, 4 or 6 of section 2. However, if the nine-metre radius anywhere extends beyond the boundaries of the grounds on which the place is situated, smoking is prohibited only up to those boundaries.
The smoking prohibition under the first paragraph does not apply outside premises where the services of an intermediary resource are offered if the premises are situated in a dwelling or outside private residences where home childcare is provided.
It is important to keep in mind that in the case of non-compliance with the regulations, not only would a prescribed medical marihuana smoker be responsible for any damages to equipment and harm to people in the workplace that may result, but an employer that allows such an occurrence would also share responsibility if the entities affected seek compensation for the damage or harm caused. Section 11 of the Act states the following:
11. The operator of a place or business to which this chapter applies shall not tolerate smoking in an area where smoking is prohibited.
In proceedings for a contravention of the first paragraph, the operator of the place or business is deemed to have tolerated smoking in an area where smoking is prohibited if it is shown that a person smoked in that area. The onus is on the operator to show that smoking was not tolerated by the operator in an area where smoking is prohibited.
In light of these considerations, it would be appropriate for employers to establish a designated area where smokers of medical marihuana can take their medication without impairing their colleagues or other individuals present in the workplace (clients, persons in nearby commercial areas, etc.), in compliance with the pertinent legislation. Obviously, the fact that the intake of medical marihuana is usually through smoking presents an additional challenge, considering the volatile nature of smoke, which must be taken into account. Note that the operator of a specified place is permitted to set up a closed smoking room only in exceptional circumstances, where designated persons are lodged in that place. Therefore, the current legislation would not allow for prescribed medical marihuana users to smoke inside the workplace, whether the employer tolerates it or not.