more about the work the employee does. You may then request
additional medical information, such as a functional abilities form
from their doctor.
Heeney and Whitten agree that it is critical to avoid saying yes
or no to accommodations right off the bat. “If you’re concerned
about their ability to carry out their job while taking medicinal
marijuana, you might create a job description for the role and ask
them to take it to their doctor to determine whether they can per-form
all their duties,” said Whitten.
If you ultimately determine that the employee can’t be accom-modated,
and the case goes to the Human Rights Tribunal, you
will need to prove you went through a process of evaluating
options before denying accommodation.
“You have the right to ask for more information from their doc-tor
and you can request an independent medical exam from a third
party. But you want to avoid saying that this is our approach every
time we have a request for accommodation. Evaluate the facts of
each case and make a measured decision,” said Heeney.
Whitten agrees. “Don’t try to make a one-size-fits-all medic-inal
marijuana policy or you’ll find yourself at the Human
Rights Tribunal.”
Once it’s been established that an office employee can be accom-modated,
Whitten says it’s within the rights of an employer to
impose restrictions on how and where they can consume medicinal
marijuana. “You can say that, ‘If you have to ingest it, you can’t do it
in front of the building, you must do it out of view of colleagues.’”
However, he cautions employers to avoid bias when it comes to
medicinal marijuana. “There’s the Cheech and Chong stereotype
that somebody is going to want to sit around eating Doritos and
that’s not true. Depending on the strength of it and whether it’s
got more CBD versus THC – often CBD is what’s used to treat
anxiety – it’s not a high they get off of it, it’s more of a mellow feel-ing.
They can still work with numbers and computers.
cover feature
“A person can be productive, concentrate and may even be
able to deal with customers. You can’t assume they’re going to be
totally incapacitated.”
It’s also important to remember that medicinal marijuana
comes in many forms, including edibles. “One of the tools in an
HR professional’s toolbox when somebody has a medical note is
to inquire if they can get the same effect by eating it as by smoking
it,” said Whitten. “When people see smoke and smell it on them,
that can have a disruptive effect for other workers because they
may have these stereotypes in mind. It’s not out of bounds to ask
whether the employee can vaporize or eat it so that it’s minimally
intrusive in the workplace.”
GET LEGAL ADVICE
When you’re not sure about the law, Heeney suggests getting
legal advice as you put together your policy and the first few times
accommodation requests for medicinal marijuana comes up. “You
don’t have to write a whole new policy to include new legisla-tion.
Tweak what you have and consider getting it reviewed by
an employment lawyer. If the Human Rights Tribunal feels those
policies are not reasonable, they can rule that there is a breach even
if it seems unwarranted.”
Remember that window cleaner case? Eager employment law-yers
awaited the decision from the Human Rights Tribunal,
hoping that it would provide more clear direction about the law
and medicinal marijuana. Unfortunately, it wasn’t as helpful as
they were hoping.
“It’s easy to justify a refusal to accommodate a prescription for
workers who drive or use heavy equipment. It’s the office jobs that
are more complex and there’s no across-the-board standard set at
this point.”
All the more reason to shine up your policies and make sure
your employees understand them. n
pyotr / 123RF Stock Photo
Employers need to
determine the expectation
when employees meet
with clients who may
consume marijuana
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