Introduction

An employee’s use of intoxicants, like marijuana, can adversely affect the work environment by:

  • compromising the ability of employees to perform their job duties;
  • threatening the health and safety of the employee and his or her co-workers; and
  • undermining the employer’s reputation.

It is no surprise, then, that employees who are found to be under the influence at work often face discipline.

Yet, the rise of marijuana as a treatment for disabling medical conditions (such as epilepsy, chronic pain or post-traumatic stress disorder) has caused this once relatively “clear” issue to become more complex.

Under the new Marijuana for Medical Purposes Regulations (“MMPR”), doctors can prescribe medical marijuana as a treatment for specified health reasons without the patient having to apply to Health Canada. Since individual doctors, rather than a centralized regulator, are now issuing prescriptions, there is a strong likelihood that medical marijuana will become more prevalent in the workplace than in the past. Indeed, nearly 40,000 patients across the country are authorized to use medical marijuana. This number is expected to reach upwards of 400,000 over the next ten years.

As medical marijuana becomes more frequently prescribed, prudent employers are struggling to find the right balance between workplace productivity, workplace safety and accommodation under theHuman Rights Code (the “Code”).

Ontario Human Rights Code – The Duty to Accommodate

The Code imposes several broad obligations on employers. One of the most difficult to properly manage is the duty to accommodate. Generally speaking, the duty to accommodate requires employers to adapt rules and requirements to meet the needs of individual employees who would otherwise be exposed to constructive discrimination on a protected ground, including disability.

As mentioned above, medical marijuana is prescribed to treat a variety of illnesses that would likely meet the definition of a “disability” under the Code. In such cases, the duty to accommodate a disability may require employers to accommodate the medical use of marijuana. An employer’s obligation to accommodate does not cease when an employee’s ability to perform their current duties becomes impaired. The employer will usually be obligated to accommodate the employee in other ways such as allowing the employee a leave of absence, providing additional breaks, or providing the employee with substitute forms of work.

Employers should remember that the Code also protects against discrimination based on a perceived disability. As such, employers should be cautioned from making stereotypical assumptions about the abilities of an employee who has been prescribed medical marijuana. Accordingly, it is improper to alter an employees work functions based on an assumed impairment from the medication. So, employers are well-advised to request medical documentation that outlines the employee’s ability to safely and adequately perform his or her job duties.

However, the duty to accommodate is not limitless. An employer must only accommodate an employee’s disability to the point of undue hardship.  The outer limits of undue hardship in accommodating the use of medical marijuana are unclear and will likely generate significant debate (and litigation) in coming years.

A key consideration in determining whether an accommodative measure would amount to undue hardship is occupational health and safety.  Occupational health and safety legislation imposes  an obligation on employers to take every precaution reasonable in the circumstances for the protection of a worker. So, employers need to be wary of proposing accommodations that involve safety concerns (either to the worker or a co-worker).

Key Concepts for Employers

  1. The regular principles around the duty to accommodate apply.  Medical marijuana is a prescribed medication and employers need to take requests for accommodation seriously. An employer is required to attempt to find a suitable accommodation for the employee (as would be required for any other disabled employee with a medical drug prescription).
  2. Employer’s only need to make accommodations for needs that are known.  While employees do not have an obligation to disclose their disability or treatment, the duty to accommodate exists only for needs that are known. Organizations are not responsible to accommodate a disability which they are unaware of. While employers should attempt to assist a person who is clearly unwell, and should inquire when signs of a disability are reasonably apparent, they are not expected to diagnose illnesses or guess at the health status of an employee.
  3. Employers are entitled to know the extent of the employee’s limitations.  While employers are not entitled to know anything about the underlying disability, employers can, and would be well-advised to, request medical documentation from the employee that outlines the employee’s ability to safely and adequately perform his or her job duties as well as any limitations.
  4. A prescription for medical marijuana does not grant an employee new “rights”. Similar to any other prescription medication, a prescription for medical marijuana does not entitle an employee to:
    1. be impaired at work; or
    2. compromise his or her safety, or the safety of others.