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The Question

I have worked for a large company for over 16 years. I have had two serious car accidents, one in 1997 and the other in 2012, resulting in chronic low back pain.

In September, my doctor prescribed me medical marijuana as my medications weren't working effectively. I feel much better with it.

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However, my employer has since refused to accommodate me and put me on a paid leave of absence because of the medical marijuana, saying that because I work in a safety-sensitive position they do not have another role available for me.

In January, they made me do an independent medical exam by their doctor, who of course said I should try other medications and that I am not fit to work in a safety-sensitive position. I have said I am willing to work in any other position but they refuse to allow me. I asked my union to file a Human Rights complaint but they refused. I hope to file one on my own. I'm sure this big company has other jobs that would accommodate me. What's your advice?

The First Answer

Daniel Lublin

Employment lawyer, Whitten & Lublin, Toronto

Human rights laws protect employees who are prescribed marijuana for a variety of health concerns. Therefore, employers have a legal duty to accommodate employees with marijuana prescriptions, which means making necessary and appropriate adjustments to the workplace to allow them to continue to work. However, there are some well-established limits.

Accommodating an employee with a marijuana prescription does not require an employer to incur unreasonable expense, significant disruption to its business or to endanger the safety of other employees. This is especially so where the employee works in a safety-sensitive position and there is medical evidence that their ability to perform that job is compromised through the use of marijuana. For example, it is illegal to operate heavy machinery or a vehicle under the influence of marijuana. In these situations, an employer should refuse to allow an employee to perform any work that could endanger their colleagues or themselves.

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In your specific case, your employer may be justified in refusing to permit you to work in a safety-sensitive role while using marijuana. But there may be more that it can do than leave you on a paid leave. It should explore providing you with work in any vacant roles you are qualified for, retraining you for others, or consider shuffling various duties around to provide you with meaningful work. If it is outright refusing to engage in this dialogue, then consider a human rights complaint.

The Second Answer

Greg Chung-Yan

Associate professor, industrial/organizational psychology, University of Windsor

Employers have a duty to make accommodations for disabilities to the point of undue hardship. There are no hard and fast rules about what constitutes undue hardship but there should be a documented, good-faith process that explores possible accommodations, considering such factors as health and safety; cost; and workplace productivity. The union is also a consideration, as your collective agreement may have to be amended. Meeting this standard is difficult given that it was designed to protect employees from discrimination.

I cannot speak to the merits of your case without more details but it concerns me that your union is not supporting you. It suggests that they are satisfied with your employer's response. Seek advice from a human resource professional before going through the trouble of a human rights complaint. Make sure you have a record of all your correspondence of your requests for accommodations, supporting medical documentation, and the rationales given from your employer and union for rejecting your requests.

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Got a burning issue at work? Need help navigating that mine field? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com. Your confidentiality is ensured.

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