We have seen a number of landmark cases that have laid the groundwork for patient access in Canada, including Parker, Allard, and Smith. It has been established that it is an individual’s constitutional right to access cannabis for medical purposes.
However, there are a number of restrictions created by the employment relationship that threaten this access. The workplace is rife with discrimination and often forces employees to make a choice between their income and their medicine.
Here is what we know about rights and responsibilities in the workplace related to medical cannabis.
- Occupational Health & Safety legislation requires both employees and employers to maintain a safe work environment. Employees holding safety sensitive positions can’t be impaired during the course of their duties.
- Human Rights legislation requires employers to accommodate a disability and the courts have been clear there is a broad duty to accommodate medical cannabis as a prescription medication, to the point of undue hardship.
- Employees must hold a valid prescription for medical cannabis in order for an employer to have the duty to accommodate.
- Employees have the right to accommodation and as such they have a reciprocal duty to disclose use of impairment causing prescription drugs, including medical cannabis.
This sounds relatively straightforward on paper. However there are a number of issues hiding under the surface.
Employers Aren’t Prepared
Prior to the MMPR, patient numbers were relatively low and as such, managing a cannabis patient in the workplace was a rare occurrence. With the growing number of patients and overall increased acceptance of cannabis as a prescription drug, this has quickly become a workplace issue. Employees across the country are consuming medical cannabis and employers are behind the eight ball.
Employers simply aren’t educated on medical cannabis or their responsibilities for managing it in the workplace. They don’t have business processes in place for when an employee discloses. This results in employees being treated like criminals or addicts when they do come forward. As you can imagine, this doesn’t create a favourable environment for disclosure.
Impairment Isn’t Understood
Today, we lack a conclusive definition of impairment by cannabis. Clinical studies will inform this over time, but impairment will always be subjective depending on the individual’s tolerance and dosing.
Due to the lack of knowledge that employers have on cannabis, the trend I see is to assume that any cannabis patient will be impaired at work. This has a hugely negative impact on employees, because the next step is to move them into a non-safety sensitive role, which often comes with a lower salary.
Generalizations are dangerous and whether accommodation is needed must be assessed individually. There needs to be a conversation with a physician about dosing and an assessment of impairment. This should happen in context of the employee’s job duties and responsibilities to determine if they are fit to hold a safety sensitive position.
It is discriminatory to make knee-jerk assumptions about an employee’s medical cannabis use and not go through the due diligence of assessing if they are fit to hold their job.
Disclosure is Broken
Employees who hold safety sensitive positions have a duty to disclose the use of impairment causing prescription drugs. We can all understand why this is important for overall workplace safety.
However, the disclosure process is horribly broken. Employees are afraid they won’t get hired if they disclose during the recruitment process - so they don’t. They are afraid of being unjustly suspended or moved into a lesser position if they disclose once on the job. So they don’t. Basically, there is a high risk of discrimination around every turn.
There are going to be times where an employee should be accommodated into a different position because their cannabis makes them unfit to do safety sensitive work. However, these processes are handled in such a punitive way today that it creates an environment where employees are not disclosing – even when they should be.
So we end up with employees who could be a real safety risk keeping their prescription private for fear of losing their income. It’s a vicious and dangerous cycle.
Clients Discriminate Too
There are a lot of industries in Canada where the employer sends an employee to work on a client’s site. The client owns the site and the employer’s responsibilities, including the duty to accommodate, do not necessarily transfer to the site owner.
In this situation, the site is usually a safety sensitive environment and the site owner has very strict drug and alcohol policies. Employers are not willing to risk losing their contract with the client and don’t advocate on behalf of the cannabis patient to see what form of accommodation may be available on the site.
The employer is then in a position to argue that undue hardship has been met and accommodation isn’t possible. It’s a “David and Goliath” situation and the big boys are getting their way.
But if a site owner singles out a medical cannabis patient, which leads to a demotion or termination - it’s still a form of discrimination. Perhaps the site owner doesn’t have the same responsibilities for the employment relationship, but it’s discrimination nonetheless.
Today, we haven’t seen any cases of this scenario, but I expect we will in the near future as I hear the issue raised by HR professionals when discussing cannabis in the workplace.
Access to medical cannabis is a constitutional right, but one that the employment relationship puts serious restrictions on. Some restrictions are justified given that cannabis is an impairment causing substance, but employers lack education and business processes for managing this effectively. They end up handling it poorly and creating a punitive environment that is not conducive to employee disclosure.
Employers are trying to avoid safety risks by simply saying ‘no’ to medical cannabis or ignoring it altogether. The ironic thing is that by doing this they are creating an even more dangerous situation where employees are not disclosing use when they should be. It’s lose-lose and needs to change.
There are a lot of employers who are sticking their head in the sand when it comes to medical cannabis instead of realizing it is a reality. Employers need to get educated on the topic and develop internal procedures for managing medical cannabis in the workplace in a proactive manner.
Featured image via wikipedia