Pubdate: Mon, 26 May 2014
Source: Ottawa Citizen (CN ON)
Copyright: 2014 Postmedia Network Inc.
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.ottawacitizen.com/
Details: http://www.mapinc.org/media/326
Author: Vito Pilieci
Page: A7

MEDICAL MARIJUANA AND THE LEGAL HAZE

New Rules May Mean the Return of the 'Smoking Room' To Canadian Workplaces

We're long past the days of Mad Men-style cigarettes in the office, 
but some say a looming spike in the number of Canadians using medical 
marijuana could force the return of "smoking rooms" to workplaces 
across the country.

In an era of smoking bans on patios, parks and restaurants, the 
notion may seem absurd, but those relying on marijuana to ease 
chronic pain and other conditions may soon be demanding accommodation 
for their medically prescribed and commercially grown medication.

"We think this is going to be a big issue," said Kecia Podetz, a 
partner at Ottawa's Emond Harnden LLP specializing in employment law. 
"There is an immediate reaction, because historically we don't allow 
employees to smoke marijuana in the workplace. But, once you get past 
that and think, 'this is a prescription from a doctor and it must be 
treated like any other prescription,' all the usual accommodations 
come into play."

Employers have a legal obligation to accommodate their employees when 
it comes to sickness or disability in the workplace. The obligation 
is enshrined in the Canadian Human Rights act as well as the 
Occupational, Health and Safety Act and is known as an employers' 
"duty to accommodate" employees with special needs.

The issue has already begun to create buzz. In November, Cpl. Ronald 
Francis, a Royal Canadian Mounted Police Officer in New Brunswick, 
was stripped of his uniform after it was discovered he was smoking 
marijuana on the job. Francis had obtained a prescription for three 
grams of medical marijuana a day to control symptoms from post 
traumatic stress disorder suffered while serving in First Nations communities.

The case sparked a wave of controversy.

Experts believe that, thanks to new legislation, which was enacted on 
April 1 and has in some ways made it easier for Canadians to access 
medical marijuana, more controversial cases will materialize. Some 
may even make their way to Canada's courts.

By making marijuana a controlled substance that can be prescribed by 
doctors, the once-taboo weed becomes a medication that employers must 
allow in the workplace.

There are already more than 40,000 Canadians who are using marijuana 
for medicinal purposes. Health Canada says it expects that number to 
jump to more than 480,000 users in the next 10 years.

Large employers across the country are now quietly reviewing 
corporate policies to determine set methods of dealing with any 
workers who may be prescribed marijuana, and they are looking to 
lawyers such as Podetz and others for guidance.

The issue is complex. Besides an employer's legal obligations, the 
Smoke-Free Ontario Act only applies to smoke created by "tobacco" and 
"tobacco products." It doesn't cover smoke created by marijuana, 
meaning issues pertaining to smoking in the workplace are once again 
being discussed.

A spokeswoman for Ontario's Ministry of Health and Long-Term Care 
confirmed that the act can't prevent a person with a prescription 
from smoking marijuana in a work environment or in a public place. 
They also said there is no movement from government to amend the act.

An employer is expected to accommodate a worker up to the point of 
"undue hardship," according to the Occupational, Health and Safety 
Act. While an employee with a prescription for marijuana can't 
infringe on the rights of their coworkers by smoking in the open, an 
argument could be made for a private smoking room, allowing employees 
who need to use marijuana, the ability to do so discreetly.

"An employee using marijuana may say, 'This is different because 
smoking a cigarette in the building is prohibited by law. You have to 
accommodate me," said Carl Cunningham, a partner in the employment 
law practice at law firm Bennett Jones LLP. "If an individual is 
saying, 'This is a medical condition ... and this is a private issue 
and I want privacy to deal with that.' This is a prescribed 
medication. What they're doing is not unlawful and if it's related to 
a medical condition, an employer will have a duty to  accommodate."

"Reasonable accommodation may be a private and separate area where 
the fumes do not affect other workers and where the employee can 
take, what is now, lawful medication."

Cunningham said not all employees will be able to argue that they 
should be allowed to smoke marijuana on the job. Workers in jobs 
where their personal safety is a concern, such as a forklift 
operator, professional driver or law enforcement official, would 
likely need to have their jobs reclassified to accommodate their prescription.

While the issues surrounding marijuana are new, Cunningham said that 
employers have dealt with similar issues pertaining to drugs such as 
Percocet and Oxy-Contin, which have also been available through 
prescriptions and have the ability to alter a person's state of mind.

According to the law, an employer is expected to accommodate 
employees up to the point of "undue hardship." However, "undue 
hardship" is not defined by the law, meaning that any disagreement 
about the marijuana issue in the workplace could end up before federal courts.

The onus is largely on the employer to make things work and simply 
claiming that a private smoking room is not viable due to cost isn't 
a valid reason to deny the employee.

"Simply declaring that the cost is too high or that there is 
unreasonable risk to health and safety does not constitute undue 
hardship," reads a primer for employers on undue hardship placed on 
Treasury Board of Canada Secretariat's webpage.

"To prove undue hardship, you must provide substantial evidence and 
document it."

Jamie Shaw, president of the Canadian Association of Medical Cannabis 
Dispensaries, said the fact that businesses are discussing the issue 
in preparation for the months and years ahead is a positive step for 
medical marijuana users as it forces organizations to think of 
marijuana as a medicine and less like an illicit drug.

"There is still a lot of confusion around it," said Shaw. "In terms 
of breaking stigma, this is really good stuff. It's bringing a lot of 
those stigmas to light."

The new legislation surrounding how medicinal marijuana is prescribed 
came after Federal Courts ruled that the drug must be made more 
accessible to patients.
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MAP posted-by: Jay Bergstrom