Pubdate: Thu, 14 Apr 2016
Source: National Post (Canada)
Copyright: 2016 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Howard Levitt
Page: FP9

POT PRESCRIPTION ISN'T A FREE PASS

Workplace Law

Using marijuana remains illegal for most people, despite the Liberal
federal government's push to legalize it. Even if marijuana use is
legalized, employers still have the right to prohibit it in their
workplaces and to create policies that allow them to fire employees
who come to work intoxicated, subject to the same rules that apply to
alcohol use.

However, that is not the case with prescribed medical marijuana. Since
the passing of legislation in 2014, the number of employees alleging
that their use of marijuana is related to chronic pain, cancer,
sleeping disorders, and so on, has grown.

While employers may wonder whether the employee is genuinely in
chronic pain, and whether marijuana is the most appropriate drug to
manage it, these are purportedly invasive questions they are
prohibited from asking.

The use of medical marijuana triggers the same principles of workplace
accommodation as any other medically prescribed treatment. If an
employee informs you he or she needs to take the drug at work, the
employer's statutory obligations are triggered.

Happily, this does not circumvent the employer's obligation to ensure
all employees are safe. The Occupational Health and Safety Act states
the employer must provide a safe working environment for everyone -
including protecting them from impaired employees. This extends to the
user. If you can establish that there is a meaningful impairment in
the employee's capacity to carry out his or her job, you may be able
to enforce a zero-tolerance policy against employees coming to work
intoxicated or using marijuana during the workday.

That argument is stronger if danger exists in the workplace or there
is safety-sensitive equipment. Even then, you may have to provide the
employee with a leave of absence while they use the drug, or work (if
you have it) that does not create a safety risk.

The uncertainties around medicinal marijuana use are daunting because
the is using marijuana in the workplace, but has not disclosed it to
you, you can move to discipline or terminate. Your obligation to
accommodate someone's marijuana use is only triggered once they
disclose the use is for medicinal purposes. Only then are human rights
protections engaged. Even when an employee says it is prescribed, ask
for proof - you are entitled to it.

Following are a few guidelines to help employers deal with marijuana
in the workplace:

Accommodation: If the employee operates safety equipment, determine the 
availability of administrative work the employee is qualified for, 
before you tell them accommodation is not possible.

Investigate: Remain cognizant of your obligations under the Occupational 
Health and Safety Act. Don't make assumptions about an employee's 
ability to carry out their job functions safely, determine whether they can.

Disclosure: If an employee is using marijuana in the workplace, but has 
not disclosed it to you, you can move to discipline or terminate. Your 
obligation to accommodate someone's marijuana use is only triggered once 
they disclose the use is for medicinal purposes. Only then are Human 
Rights protections engaged. Even when an employee says it is prescribed, 
ask for proof - you are entitled to it.

Protect your reputation: While you can't say no to the use of
medicinal marijuana, you can ensure the employee does not tarnish your
corporate image. An onlooker cannot distinguish between recreational
and medicinal use, so if an employee is using it - you can insist they
don't smoke it at work and prohibit them from telling others in the
workplace, particularly when the information would reflect badly on
you.

Request for information: Nothing precludes you from sending a
questionnaire home with the employee to be filled out by a physician.
You are allowed to ask how much marijuana the employee is required to
use and what parts of the employee's job may be affected by that
consumption. A simple prescription does not permit free rein.

Even though marijuana may manage some medical conditions, you are
permitted to have frank and fair discussions with the employee about
what they can and cannot do.

(Howard Levitt is senior partner of Levitt & Grosman LLP, employment and 
labour lawyers. He practises employment law in eight provinces. 
Employment Law Hour with Howard Levitt airs Sundays at 1 p.m. on 
NEWSTALK 1010 in Toronto.)
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MAP posted-by: Matt