In February 2018, Canadian Family Physician, a peer-reviewed medical journal and the official publication of the College of Family Physicians of Canada (CFPC) issued new simplified guidelines for when primary care physicians should grant a licence for medical marijuana.
The guidelines imply that Canadian physicians are over-prescribing medical marijuana for conditions that it has not proven helpful for. The recommendations include
- limiting medical cannabinoid use in general; and
- restricting use to only those medical conditions for which there is some evidence of utility (e.g. neuropathic pain, palliative and end-of-life pain, chemotherapy-induced nausea and vomiting, and spasticity due to multiple sclerosis or spinal cord injury).
If marijuana is not always necessary in the treatment of illnesses or disabilities, what is the impact on employers’ rights within the obligation to accommodate disabled employees who use medicinal marijuana? In this piece, we examine the employer’s right to gather information in response to a request for accommodation.
Duty to Accommodate
Under federal and provincial human rights legislation, as well as the common law, employers have the duty to accommodate employees with mental or physical disabilities. Generally speaking, accommodation requires changing, adapting or otherwise modifying the workplace or workplace standards in order to provide the employee with an equal opportunity to perform a job for which they are otherwise qualified.
The duty to accommodate is onerous, but not inflexible. The Supreme Court of Canada has stated that it must be demonstrated that every possible accommodation has been considered and it is impossible to accommodate the employee without imposing undue hardship upon the employer. However, the law also recognizes that an employee’s right to be treated in a non-discriminatory manner must be balanced against the right of an employer to conduct its business in a safe, economic and efficient manner. This means an employer can explore different ways of accommodating the employee. If an employer has satisfied its burden of accommodating or offering to accommodate an employee, then the employee has a reciprocal duty to accommodate the employer or risk the loss of his or her job. If the employee is insisting on being accommodated in a manner that would be objectively unreasonable for the employer, taking into account the employer’s specific circumstances, then the employer can claim undue hardship and refuse to accommodate the employee in that manner.
Limitations of Accommodation
So, how does this apply to the issue of marijuana in the workplace? Employees have a right to privacy regarding medical or personal issues, but they are still obligated provide sufficient evidence of a disability in order to compel employers to accommodate them. An employer needs enough information to determine if accommodation is required, the limitations of the disability requiring accommodation, and what forms the accommodation may take (i.e. flexible scheduling or modifying job duties). If an employee has not provided enough information for their employer to make these determinations, the employer has the right to request more detailed information from the employee’s treating physician including information on the medical condition being treated, the daily amount of medical marijuana recommended for use, the method of administration of the medical marijuana, and whether there are other options with lower impact on performance.
If the employer is dissatisfied with the information provided, it can request an independent medical assessment (IME) about whether medical marijuana is appropriate. It is possible that the physician conducting the IME may disagree with the treating physician and conclude that medical marijuana is not appropriate. In that case, the employer can consider refusing to accommodate the employee’s request and advise that regardless of the licence for use having been provided, full drug and alcohol policies will apply, the employee must not be under the influence of any intoxicating substances while working, and they will be subject to testing under the company policies.
When Medical Marijuana is Appropriate
If it is determined that medical marijuana is appropriate and accommodation is needed, then options for accommodating the employee can be considered. Those options should be discussed with the employee, and ultimately an accommodation plan should be made which the employer and employee agree upon. This accommodation plan should document all efforts made to accommodate the employee, and should be adjusted to meet the needs of the employee if they shift over time, to help ensure that the employer’s duty to accommodate is being met.