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The question

I have a prescription for medical marijuana and restrict my use to evenings after work. I’m going to be rotated into a safety-sensitive position soon at a client’s external job site with very strict alcohol and drug policies.

It will be no problem for me to abstain from using for the time while I am on the job site. However, I will not pass the pre-employment or random drug screenings because I consume THC products while not at work.

What are your recommendations in this situation?

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The first answer

Sara Forte, employment lawyer, Forte Law, Surrey, B.C.

If you don’t want your job to go up in smoke, proceed with caution. I will assume that you are using the medical marijuana legally, which means you have a prescription from a licensed medical professional to treat a medical condition, that you are obtaining the cannabis through legal means and are using it precisely in the dosage and timing as prescribed.

If your use is compliant, you should raise this issue upfront with your employer. If you are using the medical marijuana as treatment for a “disability,” which includes most chronic medical conditions, and you tell your employer this, then your employer has a “duty to accommodate.” Duty to accommodate is a legal term that means an open exploration of how you can continue work within the restrictions and limitations caused by your disability. Your employer does not need to let you work impaired, but could assign you to a different site, for example.

If you fail a drug test without raising it first, the client/your boss may assume that you are using cannabis recreationally or illegally and that you are trying to hide it. I recommend getting a note from your doctor in advance that explains your use and confirms that it does not result in impairment during work hours. There is still a stigma around cannabis use and it is advisable to get out ahead of that by bringing it up in the best light possible.

The second answer

Karina Karassev, chief operating officer, Responsible Cannabis Use, Toronto

You have taken the right step and obtained a medical cannabis authorization from Health Canada. Your next step is to review and understand your company policies. You should then disclose your medical cannabis authorization and request accommodation from your employer in writing. A recent case, International Brotherhood of Electrical Workers v. Lower Churchill, set precedent that if an employee in a safety-sensitive workplace failed to disclose it could constitute just cause for dismissal. Therefore, it’s critical you disclose prior to starting the job. When you disclose, you’re protected under the Canadian Human Rights Act, where employers have a “duty to accommodate,” up to the point of undue hardship, an employee who has a medical cannabis authorization.

The employer may request a “fit for work” assessment by your physician or a medical professional specializing in occupational health and safety. They will be looking to understand job requirements, assess your physical or mental abilities, sensory acuity, functional limitations, your dosages et cetera. The employer will then take into consideration the assessment and determine whether you are: a) fit for duty, b) fit for duty with accommodation, c) unfit and need to be assigned to a different position if possible.

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Based on your scenario, if it is determined you are unfit with or without accommodation, the employer will likely accommodate by rotating you back to the non-safety sensitive position. The accommodation must work for you and the employer. To deny your accommodation, the employer will need to prove undue hardship – that it’s too costly or poses a health and safety risk to accommodate you.

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