legal words
A PRESCRIPTION FOR MARIJUANA DOES
NOT GIVE EMPLOYEES A GUARANTEE
TO USE IT IN THE WORKPLACE.
near the restaurant’s entrance. Moreover, the restaurant’s require-ment
that he not smoke marijuana within six feet of the entrance
was reasonable and bona fide, and had been adopted in good faith
in light of legitimate concerns for patrons, including health-related
concerns. Permitting the applicant to smoke in close proximity to
the restaurant would have given rise to undue hardship.
Similarly, in Ivancicevic v. Ontario (Consumer Services), an appli-cant
who had an “authorization to possess” marijuana argued that
a regulation under the Liquor Licence Act discriminated against
him on the basis of disability because he was not allowed to hold
and/or consume medical marijuana while on a licensed premises.
The Tribunal found that the applicant had a disability-related
need to smoke marijuana and to use it through the day; the reg-ulation
was therefore prima facie discriminatory. However, the
defence of undue hardship was met because the regulation was ad-opted
in good faith for health and safety reasons to protect against
an established risk from marijuana smoke, and was therefore nec-essary
to accomplish a legitimate purpose.
WHAT DOES THIS MEAN FOR EMPLOYERS?
A prescription for marijuana does not give employees a guaran-tee
to use it in the workplace. Both the employee and employer are
subject to certain obligations with regards to the use of medical
marijuana in the workplace.
For example, a prescription for medical marijuana does not en-title
an employee:
■■ To compromise their own safety
■■ To compromise the safety of others
■■ To smoke in the workplace (as anti-smoking laws apply to
smoking marijuana as well)
■■ To have unexcused absences
■■ To be impaired at work
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,
employers will have to confirm whether safety-sensitive tasks re-spect
the limitations resulting from the drug.
Human rights tribunals have not yet had the opportunity to deal
with the use of medical marijuana in the workplace. Regardless,
employers should weigh competing interests and obligations in or-der
to ensure that any rule prohibiting the use or possession of
marijuana does not discriminate against those with disabilities.
In de Pelham v. Rain for Rent Canada ULC, 2014 HRTO 1689, a
case of marijuana use and pre-employment screening, it was found
that there must be evidence of a disability to trigger scrutiny. The
applicant had not indicated a concern that a pre-employment drug
test or reference check would reveal a disability, nor had he point-ed
to any evidence that would indicate that the employer perceived
him to have a disability.
The application was dismissed. The Tribunal found that since
the applicant did not indicate a concern that a pre-employment
drug test or reference check would reveal a disability, nor did he
point to any evidence that would indicate that the respondent per-ceived
him to have a disability, the application had no reasonable
prospect of success as the allegations did not relate to a ground
protected by the Code.
WHAT SHOULD EMPLOYERS CONSIDER?
As discussed, human rights tribunals have yet to consider the spe-cific
issue of use of medical marijuana in the workplace. It is likely
that, as in the cases above, employers will be required to weigh
competing interests and obligations to ensure that any rule pro-hibiting
the use or possession of marijuana in the workplace does
not discriminate against those with disabilities.
When faced with a request to use or possess marijuana in the
workplace, at a minimum employers should consider the follow-ing
factors:
■■ Does your employee have a disability-related need to consume
medical marijuana?
■■ Would a refusal to allow that employee to use or possess
marijuana have the effect of creating a substantive disadvantage
for that employee by effectively prohibiting him or her from
consuming medically sanctioned marijuana?
■■ Do you have an explicit policy prohibiting the use or
possession of marijuana in the workplace?
■■ Is that prohibition based on health and safety considerations,
or other considerations that are rationally connected to the
workplace?
■■ Was the prohibition adopted in good faith, as opposed to
being motivated by discriminatory animus?
■■ Is the prohibition no broader than necessary to accomplish its
purpose?
■■ Is there a location available at the workplace where an
employee can discreetly consume the medical marijuana?
BE PROACTIVE
It will not be sufficient for employers to simply state that accom-modation
of an employee’s disability-related need to use or possess
medical marijuana through his or her working hours will consti-tute
undue hardship. Each case will require an individual analysis
of the competing interests and workplace requirements involved.
On a proactive basis, workplace policies and procedures should
take into account the potential for accommodation of medical
marijuana use or possession in the workplace. ■
Allison E. MacIsaac is an associate lawyer at Hicks Morley’s
Toronto office and currently practices in all areas of labour and
employment law.
14 ❚ APRIL 2017 ❚ HR PROFESSIONAL