Pubdate: Mon, 21 Sep 2015
Source: National Post (Canada)
Copyright: 2015 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Drew Hasselback
Page: FP1

MEDICAL POT AN ISSUE FOR EMPLOYERS

As marijuana emerges as a mainstream treatment, employers will need 
to figure out how to deal with the use of medical pot in the workplace.

As far as the law goes, there's no need for employers to overhaul 
existing policies - assuming, of course, an employer has already put 
rules in place that deal with the use of other prescription drugs 
that might impair mental capacity. From a legal perspective, all 
that's really happening is that medical marijuana is taking its place 
alongside painkillers and other powerful drugs doctors have been 
legally prescribing for years. "People sometimes need to take, for 
valid reasons, things that impair their judgment, acuity and 
performance," says George Waggott, co-chair of the employment and 
labour group at national law firm McMillan LLP.

The novel thing about medical marijuana is that for a lot of people, 
pot is first and foremost a recreational drug. TV shows like 
Entourage and Weeds make light of the myriad of ways in which some 
people secure dubious medical authorization to use pot. But that's 
just Hollywood looking for a punchline.

In the real world, the potentially blurred reality that comes with 
the bona fide use of medical pot is no laughing matter for employers. 
Employers have a duty to accommodate the needs of employees who have 
medical conditions or disabilities, and that includes anyone with a 
doctor's prescription for pot. At the same time, employers also have 
a duty to keep there workplaces safe. That means a doctor's note is 
not carte-blanche for an employee to smoke pot whenever and wherever 
they want while at work.

Employees have never had a right to work while they're knowingly 
impaired or unable to function because they've been taking 
substances, Waggott says. "That doesn't change. The issue is that 
with the acceptance, legally and socially, of medical marijuana, what 
we're most likely to see is an increase in prominence for the issue."

In Canada, federal regulators licence growers to produce medical 
grade marijuana and doctors can prescribe it for medical purposes. 
Last June, the Supreme Court of Canada broadened legal access to pot 
for medical reasons when it tossed out federal rules that had 
required medical marijuana to be dispensed only in its dried or smokeable form.

"Based on the new legislation, medical marijuana should be treated 
like any other prescription medication," says Jan Robinson, a 
managing principal with human resources consulting firm Morneau 
Shepell Ltd. "The use of cannabis as a physician approved medicine 
has been deemed a constitutional right by Canada's top court, so 
employers do need to ensure that their policies do not infringe on that right."

The duty to accommodate bona fide medical pot users has limits. 
Generally speaking, an employer is not obliged to accommodate an 
employee beyond the point of undue hardship. Neither would an 
employer be forced to do something that threatens the safety of 
others, explains Natalie MacDonald, co-founder of boutique employment 
law firm Rudner MacDonald LLP. "Second-hand smoke, for example, might 
pose a hazard to other employees," MacDonald says. "Maybe the 
employer has to let the employee go outside to smoke."

There's also the issue of safety-sensitive equipment. If an employee 
can't drive or operate heavy machinery because of the medication, the 
duty to accommodate calls on the employer to give that person another 
role within the company, MacDonald says. "Even prescription drugs 
interfere with ability to concentrate and stay awake. In that 
respect, the employer may have to consider an alternative form of work."

As reasonable as this sounds, this is a world of fuzzy judgment 
calls, rather than clearly delineated lines. There might be debate on 
what "impaired" actually means when it comes to pot. Medical 
marijuana isn't supposed to transform a day at work into a Grateful 
Dead concert. It's supposed to smooth out the symptoms that would 
otherwise make working impossible. In this new world of medical pot 
use, employers and employees will need to have some frank discussions 
about what is fair and safe.

Some employers are able to insist on zero tolerance for specific 
jobs. You could probably draw up your own quick list of jobs that 
you'd put on that list, such as pilots, brain surgeons and heavy 
equipment operators.

In a B.C. Human Rights case released in July, the tribunal found that 
an employer was not out of bounds when it dismissed a heavy equipment 
operator at a logging operation who'd been using pot. The operator 
argued he needed the pot because he was a cancer patient. The 
tribunal found the employee had no doctor's note or marijuana card. 
Absent such proof of legitimate use, the employer had no duty to 
accommodate. "It was incumbent upon him to have already obtained the 
necessary legal and medical authorization to obtain and use marijuana 
for medical purposes," the tribunal concluded.
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MAP posted-by: Jay Bergstrom