The number of licences granted to possess medical marijuana in Canada has grown exponentially from under 14,000 in January 2012 to 38,000 in September 2013. Upcoming changes to the way it is approved suggest these numbers will continue to grow.
The use of prescribed marijuana by employees creates new questions for Canadian employers. How do you deal with an employee in a safety sensitive role that has a medical marijuana licence? Are employees with medical marijuana licences exempt from drug testing? If an employee with a licence says they need to use their marijuana at the workplace, how is this addressed?
The legal framework
Medical marijuana is controlled in Canada through the Marihuana Medical Access Regulation (MMAR), under the Controlled Drugs and Substances Act, established by Health Canada. It came in for force in July 2001 and originally licensed marijuana use for end-of-life care and severe pain, including from cancer or HIV/AIDS infection. The MMAR permits the possession and “personal use production” of marijuana by persons who can establish a medical need in consultation with their medical practitioner.
But the MMAR is changing. Effective March 31, 2014 the “Marihuana for Medical Purposes Regulations” will come into effect. One of the biggest changes is that licences will no longer be granted by Health Canada as they are now—and physicians will go from declaring medical conditions to effectively begin prescribing medical marijuana.
What does this mean for the workplace?
Canadian employers need to know that:
- A licence for medical marijuana is not a licence for impairment in the workplace.
- Employees with a licence should be treated like any other employee with prescription medication that could affect their ability to carry out their duties of employment.
- The regular principles around duty to accommodate apply.
- An employer action will vary depending on whether employee is in a safety sensitive position.
For a non-safety sensitive position, employers should clarify with the employee what the workplace expectations are:
- No coming to work impaired.
- No using medical marijuana at the workplace, or immediately prior to entering the workplace.
- No sharing prescription with co-workers.
- No unexcused absences or lateness.
- The employee must continue to carry-out duties of employment in acceptable fashion.
For a safety sensitive position, employers must make further inquiries of employees to determine if the employee can be accommodated.
For employees in both safety sensitive and non-safety sensitive positions, the employer may be in a position to request a medical review or an Independent Medical Examination (IME) to see if the employee can be accommodated and what kind of accommodation is required.
Proactive steps for employers
Employers can get ahead of the matter by re-examining their workplace drug & alcohol policies. They should look at the wording around prescription and non-prescription medication. Wiithin the policy there should be wording which:
- Is broad and/or specific enough to include medical marijuana.
- Explains acceptable use of prescription and non-prescription medication.
- States when reporting of prescription and non-prescription medication is required.
- Is clear that the consequence of failing to report can result in disciplinary action, up to and including termination.
While medical marijuana is a new and sometimes controversial issue, employers need to remember it is in most ways no different than other kinds of prescription medication. Just as it’s unacceptable for an employee to be impaired on the job by taking pills, impairment due to prescribed marijuana should not be tolerated.