I did not inform my employer during a job interview that I used prescribed medical marijuana, but did ask our crew leader during my second shift if I could use it to combat pain I was feeling from walking all day (because of torn labrum in both hips). I explained that there is no THC in this marijuana – CBD only – so essentially it’s impossible to be “high” or intoxicated. She was more than okay with me using the medicine, but after my second day on the job, her boss sent me a text message terminating my employment. What are, or were, my rights in this situation?
THE FIRST ANSWER
Partner, Borden Ladner Gervais LLP, Toronto
Whether we are school bus drivers, brain surgeons or lawyers, our employers are generally and reasonably entitled to expect we are not high when we come to work, no matter the source of impairment.
That does not change just because an employee has a marijuana prescription. This employer should have asked itself: can the employee perform their duties safely and productively while taking this medication? The employer, likely, does not know much about THC (tetrahydrocannabino) or CBD (cannabidiol). It is, however, obligated to better understand this employee’s claim that it is impossible to be high or intoxicated. The employer may need to seek expert medical advice on this, just as if it were trying to understand a complicated back injury that restricted an employee’s ability to bend or lift.
Even where there is some mild impairment caused by prescription medication, an employer must decide if there are ways to accommodate an employee if they are taking such mediation because of a disability. Again, the employer will have to consider issues of safety and productivity when conducting this assessment.
If he had been given the chance, this employee appeared ready to assist the employer in better understanding the nature of this prescription medication. Just as an employer has an obligation to ask the right questions, an employee has an obligation to provide information to assist the employer in the accommodation process. Had the employer taken the employee up on this willingness to assist, they might have had a long and productive relationship.
Also, having one’s employment terminated by text message: not cool.
THE SECOND ANSWER
Chief research and development officer of work force productivity, Morneau Shepell, TorontoFrom a human-resources perspective, medicinal marijuana should be handled in the same way as any other prescription medication. As long as the medication does not impair the employee’s ability to function in any way, does not put anyone at risk, and there’s a prescription from a licensed medical doctor, the employee cannot be discriminated against. However, different than other medications, both the employee and employer have the right to review how this medication impacts the employee-employer relationship.
As a medical marijuana user, you must understand your rights. You also must adhere to the Health Canada standards for accessing this type of medication. It appears that you attempted to get an informal accommodation by disclosing your condition. However, supervisors cannot make medical accommodations on their own; they need to engage HR to ensure one standard is being used with all employees with the same need. How your situation was handled raises questions that are worth discussing with an employment lawyer.
Accommodations are a two-way street. Employers can’t dismiss requests for accommodations out of hand, and employees can’t dictate what they want or how they want to be accommodated. Employers must do what is responsible and be ready to defend their decisions, as they may be tested.
The number of medical marijuana prescriptions is increasing rapidly. While the law makes it clear that employees cannot be discriminated against, and have the right to use this form of medication, there still are practical day-to-day management considerations. As research shows a link between marijuana use and job accidents/injuries, employers will be challenged how to determine whether an employee has exceeded the safe-dosage level, and to assess the percentage level of the active ingredient tetrahydrocannabinol (THC).
Training for managers will be important, as will be clearly stated HR policies that make it clear how and when accommodations will be granted.
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