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policies & procedures
Stirring
the Pot
MEDICAL MARIJUANA IN
THE WORKPLACE
By Susanne Balpataky
The use of medical marijuana continues to rise across the
country and employers must increasingly find ways to
deal with this new reality. Until June 2015, the only legal
method of consuming medical marijuana was to smoke it.
However, in the Supreme Court of Canada decision of R v. Smith,
2015 SCC 34, the court held that a medical access regime that
only permits access to dried marijuana unjustifiably violates the
guarantee of life, liberty and security of the person contrary to s. 7
of the Canadian Charter of Rights and Freedoms. Users of medical
marijuana may now ingest the drug in a variety of ways. Despite
the controversy surrounding its use, employers should treat medical
marijuana like any other prescription medication.
A prescription for marijuana does not entitle an employee to
unfettered use in the workplace. Employees have never had the
right to work while being knowingly impaired or unable to perform
the duties of their job because of powerful pain medication
they are using, for example. That has not changed.
Section 5(1) of the Ontario Human Rights Code, however, provides
an individual with the right to equal treatment with respect
to their employment without discrimination because of disability.
Medical marijuana may be prescribed for a variety of conditions
such as chronic pain, arthritis, cancer and multiple sclerosis, all
of which fall within the definition of “disability” contained in the
Code and engage an employer’s duty to accommodate to the point
of undue hardship. Which begs the question: what constitutes undue
hardship?
Answering this question requires a consideration of three
factors:
1. The cost of accommodation
2. Any outside funding available to subsidize the cost of
accommodation
3. Any health and safety concerns with respect to accommodation
The third factor will likely be the most relevant when dealing
with medical marijuana use on the job. In certain safety-sensitive
environments, an employer will still be justified in enforcing a
HRPATODAY.CA ❚ OCTOBER 2016 ❚ 37