Medical marijuana use is not new. Since 2001, it’s been legal for medicinal purposes. What is new is that in August 2016, Health Canada put in place a regulation to provide broader access to cannabis by prescription – including the right to make and use a variety of cannabis products. For information on the new Access to Cannabis for Medical Purposes Regulations, visit: canada.ca
As we know, employers are required to accommodate workers who have a disability. The use of medical marijuana falls under this category if it is prescribed. Medical marijuana is treated like any other medication, just like prescriptions drugs that an employee may rely on. They may use it, but they cannot come to work unable to function due to impairment.
A prescription for marijuana does not entitle an employee to:
A prescription for marijuana does not grant the employee:
If an employee presents the employer with a medical marijuana prescription, it may lead to accommodation requests which would be treated like any other accommodation request. For example, offering different working hours or altering their duties if they are in a safety sensitive position, when possible. In many situations, employers may wish to seek medical information from the treating physician regarding medical limitations and restrictions.
Information might include:
The Manager or HR practitioner will not directly ask the employee any of these questions. They will provide the employee with a Medical Questionnaire and offer 1 to 2 weeks to have it completed by the treating physician and returned to the employer. When in doubt about how to implement the recommendations of the returned questionnaire, seek legal input.
If the employee’s doctor says that they are disabled or cannot perform their work, employers will seek ways to accommodate them in their current role with modifications. Failing that, they will look for other duties the employee can perform. If there are no other vacant positions in the workplace, the employer will try to cobble together duties to allow this person to work but there is no obligation to create work that does not exist. If there is no job available at all, the employee would rely on Employment Insurance Sick Leave for 15 weeks and then may look to CPP for a Disability Pension, or may seek Long Term Disability via an LTD benefits plan.
Remember that employers don’t have the right to ask an employee if they use medical marijuana, just like they wouldn’t ask an employee if they rely on anti-depressants or insulin. However, if there has been an accident or incident in the workplace, and/or other reasons to believe there may be impairment issues, an employer can ask about substance use.
The Human Rights Code of Ontario has acknowledged that employers should inquire instead of fire if the employee is displaying symptoms of impairment.