Medical Marijuana in the Workplace:

Managing Challenges without Going up in

SmokeConference Board of

CanadaFebruary 21, 2017

Presented byStuart E. Rudner

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Accommodating Medical Marijuana

What employers imagine

The Duty to Accommodate

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What is Discrimination?“Adverse treatment of a person on the basis of a protected ground”

Direct & indirect– “No Jewish applicants” vs “Must be able to

work on Saturdays”– “Absolutely no marijuana on premises”

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The law expects that:1. There will be a real effort to

accommodate; and 2. There may be some

hardship in accommodating the request.

But BFOR is an exception, and undue hardship is too far.

Bottom Line:

Bona Fide Occupational

Requirements and Undue Hardship

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Bona Fide Occupational Requirement

Bona fide Occupational Requirement (BFOR): a skill or characteristic that is essential to a job, without which the job cannot be performed

If a barrier = a BFOR, the employer may not be required to accommodate – high standard

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Plaintiff:Establish prima facie discriminatory conduct

Employer: establish BFOR1. Standard was rationally connected to

job performance2. Honest and good faith belief of its

necessity3. Reasonable and necessary for

legitimate purpose

The Meiorin Test

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Undue Hardship Duty to accommodate may not apply if it

causes undue hardship. High standard to meet Severe negative effects outweigh benefit

of accommodation

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Undue Hardship Consider:

1. Financial Costs2. Health and safety risks3. Anything else that is

relevant4. Breach of collective agreement is not

Human rights legislation trumps contract

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Responding to Accommodation Requests

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Rules Employers cannot dismiss

requests for accommodation out of hand

For any accommodation request onus is on employees to

provide detailed information

employees are not entitled to dictate preferred form of accommodation

employer can assess all options and determine if any are viable.

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Accommodation Have process for assessment Process is to be 2 (or 3) way dialogue Request (medical) documentation if

applicable Work with employee to understand needs

and limitations Understand how ground intersects with job

duties

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What Can You Ask For?Limitations on ability to carry out job functions

Then: Assess need for accommodation Assess accommodation options

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Employee Role in Accommodation Process

Star Choice Television v. Tatulea: employees must participate in accommodation process– Leave of absence for neck pain – STD denied; employer offered six week

accommodation plan that employee refused to participate in

– Employer’s attempts to discuss went unanswered; employee terminated

– Arbitrator: employee did not live up to “his part of the bargain”

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What should accommodation look like?

Modified or shuffled duties if necessary Modified hours Leave of absence Telecommuting/working from home Provision of assistive equipment

Accommodating Medical Marijuana

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Health Canada estimates that 450,000 Canadians will turn to using legal medical marijuana by 2024

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Same as any other medication?

BUT… Different types of users1. Casual User2. Addicted User3. Self-medicator4. Licenced user Different types/strengths/impact of

marijuana

The (Case) Law Brown v Bechtel Canada: impossible to accommodate

where employee fails to disclose marijuana prescription, condition etc

French v. Selkin Logging: self-medicating employee can be discriminated against but can’t accommodate in absence of prescription" I find a zero tolerance policy for marijuana would satisfy the first two steps of the Meiorin test. However strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes

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More Case Law United Steel Workers, Local 7656 v

Mosaic Potash Colonsay ULC: Er entitled to info to determine if alternative treatments existed

Lower Churchill Transmission: medical note suggesting impairment for 4 hrs after ingestion

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And Even More Case Law Burton v. Tugboat Annie’s Pub: no

discrimination where terminating employer didn’t know diagnosis

Mobo Gymnastics Coach v. Gymnastics Club: dismissal in spite of evidence of disability and no effort to accommodate can = discrimination

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Bottom Line Similar to other

prescription medication But diff ways marijuana

gets into workplace Diff levels of impairment Employee must show need

for accommodation Employer must then

assess

Remember Accommodating disability = accommodating treatment

Avoid stereotyping abilities of employees using marijuana

Educate yourself about use Prove that you have taken every step up

to point of undue hardship Documents all consideration /

assessments

Avoid a Human Rights Lawsuit

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Designing a Policy

Design a “Marijuana Policy”

No need for specific policy – incorporate into “Drug and Alcohol” or similar policy

Address prescription medication Require reporting of use of any medication

that may cause impairment Address reporting mechanism,

confidentiality & privacy

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Best Practices Have ONE process for responding to all

requests for accommodation Require appropriate documentation Assess need for accommodation Assess options DOCUMENT EVERYTHING

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Discipline and Dismissal

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Manage Suspected Abuse

Put reporting procedure in place for use/abuse during work hours

Communicate disciplinary consequences of policy breach

Investigate properly before action/dismissal

Consider human rights issues

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Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

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Just Cause: What Does the Employer

Prove?1. The alleged misconduct took place,

and2. that the nature or degree of misconduct

warranted dismissal, bearing in mind all relevant circumstances

Contextual approach

Proportionality is guiding principle

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Stuart E. Rudnersrudner@rudnermacdonald.comYork Region: 289-317-1300

Toronto: 416-640-6402

www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the

Canadian HR Law Group and visit the Rudner MacDonald Page

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