There are more than 235,000 Canadians registered with Health Canada to access medicinal cannabis. As that number grows, some are learning that having medical authorization from a doctor to use the drug can complicate matters in the workplace.
Some patients who have disclosed medical cannabis use to their employers are asked to answer questions about their diagnosis, dose amounts, strains, frequency of use and potential alternative treatments to cannabis. Some say their employers have contacted their doctors to probe even further into the employee's personal information.
Do you have the right to refuse, or does your employer have the right to access your health information and treatment?
Understanding workplace restrictions
Alison McMahon is the CEO of Cannabis at Work, a group that educates employers about recreational and medical cannabis legalization. She says the bottom line is that cannabis has the potential to lead to impairment, which isn’t allowed at work. That especially applies to employees with safety-sensitive positions, such as public transportation drivers or those who operate heavy machinery.
“When we’re talking about a person who’s been prescribed a medication with impairment-causing effects, such as cannabis, the employer has a duty to accommodate to the point of undue hardship,” she tells Lift. “That’s per the Human Rights legislation.”
Some employers might understand the nuances of cannabis strains and compounds, like the difference between THC, which can cause impairment, and CBD, which does not. However, McMahon says employers are still required to go through a full assessment of the individual to understand if there are any workplace restrictions.
“Just because the employee is coming forward and saying ‘I have a prescription but I’m using CBD,’ it doesn’t negate the employer’s responsibility to go and get medical information from the physician to understand the employee’s prognosis, any work restrictions or if there’s any impact on them to safely do their job,” she says.
What employers are allowed to know
An employer can be privy to an employee's prognosis – when the employee is expected to get better, and if on disability, when the employee is expected to be back to work without restriction – as well as the amount of cannabis that’s prescribed and frequency of use. But an employee is not required to disclose why it’s being prescribed.
McMahon refers to the case law Mosaic Patash vs. United Steelworkers, which set a precedent for employers to be required accommodate employees who use medicinal marijuana.
“They weren’t allowed to know the condition being treated, but they were allowed to know the strain and frequency of use,” she explains. “It helped to inform workplace restriction and how they can accommodate the person.”
Employees with a safety-sensitive position – any job where impairment could negatively impact safety – are required to disclose impairment-causing medications. They are also subject to drug testing. Cannabis at Work recommends employers update their drug and alcohol policy to include cannabis.
"When there's no safety risk, there isn't that same justification for that extra information for the employee," says McMahon. "In Canada, you typically can't drug test non-safety sensitive employees."
A balance between health and workplace safety
Jason Fleming, director of human resources at licensed cannabis producer MedReleaf, says it’s important to strike a balance between workplace health and safety and accommodating medical cannabis use. He stresses that the most successful outcomes are reached when there’s honesty, transparency and collaboration between employees and employers.
“Because this is relatively new, it’s a point of concern for a lot of employers,” he says. “But when both parties are working together, towards the best possible plan, this can work very smoothly.”
Fleming anticipates that many employers will be misinformed, which will trigger knee-jerk reactions. These mishandled accommodation requests will likely lead to an increase of human rights complaints.
“The message to employers is to try and understand as much as they can about medical cannabis and how it can be accommodated safely,” he says. “It’s important to be informed, educated and prepared to handles these claims fairly.”