THE QUESTION
I work at a big-box retail store as an overnight stocker and am on medical marijuana to relieve severe stomach pain. I am afraid of being terminated for using the marijuana, so I have not informed my employer and do not use it while at work. However, often I have to leave my shift early due to pain, citing sickness. I do not know my legal rights. How would you suggest that my employer should react to my situation, if I reveal the marijuana usage?
THE FIRST ANSWER
Katherine Poirier Partner at Borden Ladner Gervais LLP, Montreal
Your concerns regarding the potential loss of your employment are understandable. However, generally, medical marijuana consumption should be disclosed to an employer as soon as possible. Concealing it may lead to termination, especially if an employee hid any limitation resulting from drug use in the course of a prehiring questionnaire.
The use of medical marijuana, when duly prescribed by a physician, is considered as any other prescription drug. It triggers a duty to accommodate, in application of the human rights legislation which protects employees from discrimination. If an employer is not aware of the employee's condition, the right to an accommodation may be forfeited. Furthermore, an employee may be pursuing work activities that aren't compatible with the residual effects of marijuana consumption, hence endangering himself or herself.
An employer, once informed, will have to complete an accommodation analysis, gathering further guidelines from the treating physician or an independent examiner, to confirm whether the use of prescribed marijuana interferes with the different tasks required. by the position.
Overnight stockers may be driving forklifts, climbing ladders or using sharp objects. Chronic marijuana consumption may have residual effects on concentration, attention and memory. Even though an employee isn't consuming on site or does not feel impaired while working, the employer will have to confirm whether these tasks, and any other safety-sensitive tasks, respect the limitations resulting from the drug.
If some tasks are incompatible, for safety, performance or other reasons, an employer will have to accommodate the employee's situation, up to undue hardship. An employer may have to transfer some tasks to other employees or offer a compatible position, if available. However, an employer's duty will not go so far as creating a new, tailored position. The analysis may not result in termination, unless no solution may be achieved without undue hardship.
THE SECOND ANSWER
Bruce Sandy Principal, Pathfinder Coaching and Consulting, Vancouver
Check with an employment lawyer about your legal rights. The lawyer will reference the Marihuana CCT for Medical Purposes Regulations (MMPR) as outlined by Health Canada, as well as human rights and occupational health and safety legislation when considering your situation. They will also want to know what policies and procedures your employer may have in place regarding the use of prescribed drugs including medical marijuana in the workplace.
If you reveal your medical marijuana usage to your employer, they will reference the aforementioned regulations, legislation, guidelines and policies in considering your situation. they will want a note from your doctor/nurse practitioner (in some jurisdictions) indicating that you are taking medical marijuana from a licensed producer for your stomach pain. Your employer will likely want your doctor to outline the nature and duration of your condition.
Your employer will also want to likely know what duties you are able and not able to perform while on the medical marijuana and will want this to be outlined in the doctor's note. If you are not able to operate heavy machinery such as a forklift while you are on medical marijuana, then your employer has a duty to accommodate, provided it does not create an undue hardship for the company. (There is no strict definition of undue hardship but courts will consider a number of factors such as the level of financial difficulty for the company in making any accommodations and whether accommodating the employee would compromise workplace safety.)
If your employer has a non-smoking and vaporizing policy, you will have to look at taking the medical marijuana in a non-smoking or non-vaporizing form, such as tea, edible or skin-patch formulations.
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Bruce Sandy