marijuana and workplace safety -...
TRANSCRIPT
MARIJUANA AND WORKPLACE SAFETY
What’s an Employer to Do?
Presented by: Loretta Bouwmeester & Sarah Smith
April 11, 2017
Overview
Medical Marijuana • Current legal landscape
• What do you do if an employee comes to work with a
prescription?
• Do you have to accommodate all medical marijuana
users? What about “over the counter users” once legal
and they don’t have a prescription?
• Human Rights/Privacy vs Safety – which trumps?
Legalization of Recreational Marijuana in 2017 • What are the implications for employers of recreational
marijuana: At the workplace? At work functions?
• Is your workplace ready? • Revisit your Drug & Alcohol or Fitness for Duty Policy
• Training for senior management, supervisors/managers
and employees generally
2
Employer Responsibility
Employers have a legal obligation to:
• protect the health and safety of workers
• protect the public and the environment
• respect workers’ human rights and privacy
interests
3
Employer Responsibility
“Every employer shall ensure, as far as it is
reasonably practicable for the employer to do so
the health and safety of
i. workers engaged in the work of that
employer, and
ii. those workers not engaged in the work of
that employer but present at the work site
at which that work is being carried out,
and…”
Alberta Occupational Health and Safety Act, s.2(1)
4
Employer Responsibility
“An employer shall…
… take every precaution reasonable in
the circumstances for the protection of a
worker…”
Ontario Occupational Health and Safety Act, s. 25(2)(h)
5
Employer Responsibility
Recognize that impairment in the workplace may
be connected to a worker’s addiction or even a
prescription (medical marijuana) for a legitimate
medical issue
• Understand that addiction is a disability that
requires accommodation
• Accommodate (to the point of undue hardship) a
worker who suffers from a disability
• Balance accommodation efforts with safety and
privacy obligations
6
Worker Responsibility
Recognize that they play an important part in
workplace safety
• Responsibilities include:
• Knowing and understanding obligations under
any fitness for duty or drug and alcohol policy
that applies
• Complying with policy requirements (including
self-disclosure and reporting fellow workers
where impairment is reasonably suspected)
• Cooperating in the accommodation process
7
Marijuana – Out in Plain Sight? R v. Smith, 2015 SCC 34
MEDICAL MARIJUANA
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Medical Marijuana
Medical Use: It is now permitted
• Marihuana [sic] for Medical Purposes Regulations
• Can be legally prescribed by a doctor or nurse
practitioner
• Where not prescribed not legal (yet…)
• “Over the counter” availability is coming to your
local pharmacy
10
Current Legal Landscape
Medical Marijuana
Where an employee claims a medical need for
marijuana, the employer must treat this like any other
prescription medication that has potential impairing
effects
• Principles around duty to accommodate apply
• Employer action will vary depending on whether
employee is in a safety-sensitive position
11
Current Legal Landscape (cont’d)
Medical Marijuana
• While medical marijuana must be treated like other
prescription drugs – it does not give an employee a
green light to use marijuana in the workplace
• Employers must now have policies in place permitting
medical use of marijuana where supported by
sufficient medical evidence
• Employers continue to have the right to prohibit
impairment at work, particularly if the worker is in a
safety sensitive position – medical marijuana is not a
licence for impairment
12
Current Legal Landscape (cont’d)
Medical Marijuana: Recent Cases
French v. Selkin Logging, 2015 BCHRT 101
• Facts: Heavy equipment operator terminated for using
marijuana to treat cancer (without a prescription); he insisted
he was not impaired while at work
• Held: Employer’s zero tolerance policy for drug use at work
upheld. This policy was reasonable, and the employee did not
have doctor’s approval for use
• Take-away: Employers need to ask medical practitioners some
key questions (including whether there is an actual
prescription)
13
Medical Marijuana: Recent Cases
USW 7656 v Mosaic Potash Colonsay, 2016 CanLII
18320
• Facts: Welder using marijuana to treat anxiety and headaches
in the evenings (away from work)
• Held: Employer in a labour relations context can get medical
records to assess need for medical marijuana (i.e. is this the
right treatment plan?)
• Take-away: There is a duty to accommodate the underlying
disability, not the prescription. Employer can inquire into the
availability of alternative treatments
14
Medical Marijuana: Recent Cases
IBEW 1620 v LCTCEA, 2016 CanLII 84114
• Facts: Employee had prescription for medical marijuana to
control his chronic back pain and anxiety, but hid it from his
employer. It ultimately came to light, and he was terminated.
The employee claimed he never used on site or during working
hours
• Held: Failing to disclose medical marijuana prescription, use
and possession violated policy requirements. On judicial
review, the court agreed that this was misconduct, but found
that termination was excessive in the circumstances
• Take-Away: While failure to comply with policy requirements
can result in discipline (even termination), the discipline must
be proportional
15
Medical Marijuana: Recent Cases
City of Calgary v CUPE 37, 2015 CanLII 61756 • Facts: Employee had been using prescribed medical marijuana
(during off-duty hours) for a year, and this was known to supervisors.
No evidence of on-the-job impairment. When other members of
management learned of this, they removed employee from his safety
sensitive position
• Held: Employer failed to properly investigate prior to removing
employee from safety sensitive position. Employee was reinstated in
safety sensitive position with back pay (subject to certain conditions
being met). Employer should have questioned supervisors to
determine whether any concern of impairment existed, and requested
more medical information in a more balanced and timely way
• Take-away: Failing to investigate properly is highly problematic
16
Medical Marijuana: Recent Cases
Stewart v Elk Valley Coal Corporation, 2015 ABCA 225
• Facts: Employee who worked in a safety sensitive position tested
positive for cocaine after an incident. He first said he was a
recreational user and later that he had a dependency. Failed to
disclose either prior to incident and was terminated based on policy
violations. Policy distinguished between voluntary and non-voluntary
disclosures. He brought a human rights complaint on the ground of
physical disability.
• Held: Both the ABQB and ABCA upheld AHRC decision that the
termination was for breaching policy (use and failure to disclose) and
not due to discrimination. SCC decision is pending.
• Take-away: Need solid policy that (1) requires disclosure before a
violation and (2) emphasizes prevention, rehab., and EAP/wellness
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Medical Marijuana: Recent Cases
Burton v. Tugboat Annie’s Pub, 2016 BCHRT 78
• Facts: Employee was a bartender who was fired after another
employee (manager) saw him using marijuana while on shift.
He then brought a human rights complaint on the ground of
physical disability
• Held: Complaint dismissed on basis that no discrimination.
The employee did not disclose medical need in advance of use
• Take-away: Must disclose medical condition and fact of
prescription in advance of use so that the employer can
investigate. Furthermore, person assessing impairment cannot
themselves be impaired
18
Medical Marijuana: Key Takeaways
• For a non-safety sensitive position, employer
should clarify with the employee workplace
expectations:
• 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
• Employee must continue to carry out duties of employment
in acceptable fashion
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Medical Marijuana: Key Takeaways (cont’d)
• For a safety sensitive position, employer must
make further inquiries of the employee (and their
doctor or doctors) to determine:
• if the use is necessary at all (alt. treatment?)
• if the underlying illness itself affects fitness for duty
• what accommodation (if any) is required (physical
restrictions, length of time etc.)
20
Medical Marijuana: Key Takeaways (cont’d)
• May have to:
• Put employee on a paid administrative/medical leave
pending completion of further inquiry, or
• Offer alternate duties that are non-safety sensitive in
the interim (if available)
• Consider requesting IME (independent medical
examination)
• Consider whether benefit plan will cover the cost of
medical marijuana
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CASE STUDY
One of your employees, John, returned from a lengthy
sick leave earlier this week. You are aware that he still
suffers from some pain as a result of his illness, but he
has been placed on modified duties and seems to be
doing well (in his non-safety sensitive position).
You now receive a report from John’s co-worker that
John is self-medicating with “over-the-counter”
marijuana, and that the marijuana is “really helping with
the pain.”
What do you do now?
22
LEGALIZATION OF
MARIJUANA
23
Marijuana Legalization: Coming to a Workplace Near You…
• It is expected that this week the Liberal government
will announce legislation that will legalize marijuana
in Canada by July 1, 2018
• No details have been provided on what that means
and what tools will be made available to employers
• Including no indication that there would be explicit
legislation allowing employers to carry out post-
incident, reasonable cause, random or other testing
24
• December 13, 2016: federal marijuana task force
report released with 80 recommendations.
• See:
• http://www.cbc.ca/news/politics/marijuana-task-force-
highlights-1.3894219 or
• http://www.healthycanadians.gc.ca/task-force-marijuana-
groupe-etude/framework-cadre/index-eng.php
• pages 28-29 – recognition that no law in Canada
expressly permits or regulates mandatory testing
(including random)
• also that that ability to assess impairment much weaker
than that of alcohol (due to technology & research)
25
Marijuana Legalization: Coming to a Workplace Near You…
• April 2017: Federal government expected to introduce
legislation to legalize marijuana across Canada
• See:
• http://www.cbc.ca/news/politics/liberal-legal-marijuana-pot-
1.4041902 or
• http://www.cbc.ca/news/politics/marijuana-legal-political-
reaction-1.4042389
• Legislation will put federal government in charge of overseeing
marijuana supply and licensing producers.
• The provinces will likely be in charge of overseeing how
marijuana is distributed, sold, and priced
26
Marijuana Legalization: Coming to a Workplace Near You…
• Employers will no longer be challenged just with the legal
use of prescribed medical marijuana; they will also be
confronted with the myriad of issues that come with legal
recreational use — use that may carry over into
workplaces
• At your holiday party or summer work picnic, your
employees could be getting high in the parking lot of your
chosen venue — not hiding it, but doing it out in the open
because it will be legal to do so
• Educate about impaired driving
• Provide safe transportation home
• Consider prohibiting use at work-related social functions
27
Marijuana Legalization: Coming to a Workplace Near You…
Legalization of Marijuana
Implications for Workplace Safety
• Recreational Use: Once legal, marijuana can
continue to be treated in substantially the same way
as alcohol under employer’s Drug & Alcohol Policy
(but taking into consideration that there could be
accommodation issues)
• For example: Employers can prohibit the non-medical use
of marijuana during work hours and prohibit employees
being at work while impaired (or hungover from it)
• Violations can be subject to progressive discipline,
up to and including termination for just cause
28
Marijuana & Workplace Safety
Key Takeaways
• Get ready. Make sure that you have a strong and
enforceable policy that is part of a larger fitness for
duty program dealing with impairment caused by
legal, illegal, prescription and over-the-counter
drugs, as well as by alcohol, stress and fatigue.
Focus on why someone is impaired rather than the
source of the impairment
• Implement the policy, including training
supervisors and workers; clearly communicate the
consequences of failing to comply with the policy
(i.e. potential termination for cause)
29
Marijuana & Workplace Safety
Key Takeaways…cont’d
• Know your duty to accommodate and educate
employees on being fit for duty
• Employees with legitimate underlying health
concerns can be helped in a number of ways, such
as a leave of absence, treatment/rehabilitation or
temporary reassignment
• But as per Burton v. Tugboat Annie’s Pub and Stewart
v. Elk Valley Coal Corporation, employee has to first
disclose a need
30
Legalization of Marijuana
Key Takeaways for Workplace Safety…cont’d
• Be proactive; take steps before something becomes a
problem
• Have an employee assistance program (EAP) in place
• Consider distinguishing between voluntary and non-voluntary
disclosures of use and/or dependency
• Train supervisors and workers to detect impairment in others; give
them tools and support to report concerns safely and confidentially
• Policy should require reporting of suspected impairment and/or
dependency and any changes in dosage, in addition to a
requirement to take the medication as prescribed (i.e. schedule
and amount) and to be fit for duty
• Comply with privacy laws (Alberta’s Personal Information
Protection Act – PIPA)
31
Marijuana & Workplace Safety
Key Takeaways…cont’d
• Effectively manage privacy issues
• Understand and take steps to protect the
confidentiality of personal and medical
information
• United Steel Workers, Local 7656 v. Mosaic
Potash Colonsay ULC, 2016 CanLII 18320 (SK
LA) tells us that an employer in a labour relations
context can get relevant medical records to
assess need for medical marijuana
32
CASE STUDY –
NOW WHAT DO YOU THINK?
One of your employees, John, returned from a lengthy
sick leave earlier this week. You are aware that he still
suffers some pain as a result of his illness, but he has
been placed on modified duties (in a non-safety
sensitive role) and seems to be doing well.
You now receive a report from John’s co-worker that
John is self-medicating with “over-the-counter”
marijuana, and that the marijuana is “really helping with
the pain.”
33
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Loretta Bouwmeester Partner
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F 403-538-5049 [email protected]
Sarah Smith
Associate
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