Pubdate: Mon, 29 Jun 2015
Source: Globe and Mail (Canada)
Copyright: 2015 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Authors: Daniel Lublin and Greg Chung-Yan
Page: B8

MY EMPLOYER WON'T LET ME WORK IF I USE MEDICAL MARIJUANA

Are you facing a burning issue at work? Need help navigating that 
mine field? Let our Nine to Five experts help solve your dilemma. 
E-mail your questions to THE QUESTION

I have worked for a large company for more than 16 years. I have had 
two serious car accidents, one in 1997 and the other in 2012, 
resulting in chronic low back pain. In September, my doctor 
prescribed me medical marijuana as my medications weren't working 
effectively. I feel much better with it.

However, my employer has since put me on a paid leave of absence 
because of the medical marijuana, saying that because I work in a 
safety-sensitive position they do not have another role available for me.

In January, they made me do an independent medical exam by their 
doctor, who of course said I should try other medications and that I 
am not fit to work in a safety-sensitive position. I have said I am 
willing to work in any other position but they refuse to allow me. I 
asked my union to file a Human Rights complaint, but they refused. 
I'm sure this big company has other suitable jobs. What's your advice?

THE FIRST ANSWER

Daniel Lublin

Employment lawyer, Whitten & Lublin, Toronto

Human-rights laws protect employees who are prescribed marijuana for 
a variety of health concerns. Therefore, employers have a legal duty 
to accommodate employees with marijuana prescriptions, which means 
making necessary and appropriate adjustments to the workplace to 
allow them to continue to work. However, there are some 
well-established limits.

Accommodating an employee with a marijuana prescription does not 
require an employer to incur unreasonable expense, significant 
disruption to its business or to endanger the safety of other 
employees. This is especially so where the employee works in a 
safety-sensitive position and there is medical evidence that their 
ability to perform that job is compromised through the use of 
marijuana. For example, it is illegal to operate heavy machinery or a 
vehicle under the influence of marijuana. In these situations, an 
employer should refuse to allow an employee to perform any work that 
could endanger their colleagues or themselves.

In your specific case, your employer may be justified in refusing to 
permit you to work in a safety-sensitive role while using marijuana. 
But there may be more that it can do than leave you on a paid leave. 
It should explore providing you with work in any vacant roles you are 
qualified for or retraining you for others, or consider shuffling 
various duties around to provide you with meaningful work. If it is 
outright refusing to engage in this dialogue, then consider a 
human-rights complaint.

THE SECOND ANSWER

Greg Chung-Yan

Associate professor, industrial/organizational psychology, University 
of Windsor

Employers have a duty to make accommodations for disabilities to the 
point of undue hardship. There are no hard and fast rules about what 
constitutes undue hardship, but there should be a documented, 
good-faith process that explores possible accommodations, considering 
such factors as health and safety, cost and workplace productivity. 
The union is also a consideration, as your collective agreement may 
have to be amended. Meeting this standard is difficult given that it 
was designed to protect employees from discrimination.

I cannot speak to the merits of your case without more details, but 
it concerns me that your union is not supporting you. It suggests 
they are satisfied with your employer's response. Seek advice from a 
human resource professional before going through the trouble of a 
human rights complaint. Make sure you have a record of all your 
correspondence regarding your requests for accommodations, supporting 
medical documentation and the rationales given from your employer and 
union for rejecting your requests.
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MAP posted-by: Jay Bergstrom