Medical Marijuana: Considerations For Employers

There has been a significant culture shift in the use of marijuana over the last few years, specifically owing to its reported benefits in treating the symptoms associated with various medical conditions (headaches and chronic pain, amongst other) and in addressing the side effects associated with certain medical treatments (nausea from chemotherapy, appetite improvement, etc.). While recreational marijuana remains a controversial issue, the courts have granted legal access to marijuana for individuals with a medical need. Not only has there been certain reluctance by the courts to limit the forms in which the drug can be consumed by those with medical needs, the courts have further required "reasonable access" to a legal source of medical marijuana. In response, the Government of Canada implemented the Access to Cannabis for Medical Purposes Regulations1 to improve access to medical marijuana.

Health care practitioners are tasked with primary responsibility in authorizing medical use of the drug. As physicians become more at ease in prescribing marijuana for medical purposes, it is reasonable to forecast an increase in the number of employees in the workplace with a prescription for the drug. This raises challenges for employers that have a duty to accommodate their "disabled employees" and further conflicts with an employer's desire for a drug-free environment.

Human Rights and the Workplace

Under human rights legislation, individuals are afforded equal treatment in employment and freedom from discrimination because of disability.2 In that respect, employees with disabilities are entitled to the same opportunities as those who do not suffer from any disabilities. Employers are obligated to accommodate employees with a disability, so long as it does not create undue hardship for the employer. This duty of accommodation includes the treatment that follows the disability.

It is common knowledge that marijuana use can cause "impairment" to the user's physical and/or cognitive aptitudes. This impairment can affect both the employee's ability to perform his or her employment tasks and can also pose a serious risk or threat to others. Similarly to other prescribed drugs, a prescription for medical marijuana does not entitle an employee to be impaired at work or to compromise the safety of others.

Obligations of Employers

Given its current classification, prescribed marijuana should be treated as any other prescription drug that affects an...