Does an employee have the right to use medical marijuana at work?

Are you an employee who uses cannabis to manage a medical condition?

Are you an employer with an employee that fits this description? Do you wonder what your rights are? It is not necessarily as simple as an employee providing a doctor’s note, and then expecting the employer to accommodate cannabis use, even for medical purposes.

Cases in this rapidly evolving area are very fact specific and must be analyzed individually. Some commonalities are emerging, though. Many employers have drug and alcohol policies. These sometimes provide for certain types of drug and alcohol testing. They also typically require employees to report any use of medications that could impact the employee’s ability to safely perform his or her duties. Such disclosure requirements are generally legal.

Employers also have obligations under the British Columbia Occupational Health & Safety Regulation to ensure the health and safety of their workers.

Workers have an obligation to inform a supervisor or the employer of any physical or mental impairment, “which may affect the worker’s ability to safely perform assigned work.”

An employee who may perform safety-sensitive activities and is required to report use but fails to do so may in some cases be dismissed, with just cause. This means no severance.

As an employee, once you report your use of cannabis or medication to your employer, be prepared for a number of things to happen:

If you are in a safety sensitive role, expect to be quickly moved out of that role. This is generally legal, because of employers’ obligations to manage safety risks in the workplace.

Expect questions to be asked. Your employer may engage in what might feel like a version of “20 questions.” Employers will often assess the frequency, extent and types of substances being used and, if cannabis, the strain. They will also seek information on your prognosis.

Expect to be asked to provide your medical authorization. Your employer will likely inspect that document, and make a copy of it.

Expect your physician, the one who provided the authorization and any others who may be treating you, to be contacted and questioned. You may be asked to attend a medical assessment. As an employee, do you have to co-operate with these requests? Generally, yes, at least up to a point. If you are requesting accommodation, you generally have an obligation to co-operate with the employer’s attempts to accommodate you.

As an employer, do you need to go through all of this? Sometimes. These are practical and wise steps to take, in many cases.

Generally, an employer has a responsibility to understand what it is being asked to accommodate, including the employee’s prognosis, the potential impact on the employee’s ability to do his or her job, and any work restrictions that may be required.

Employers should be aware that employees who consume cannabis for medicinal purposes may use higher amounts, and use more regularly, than those who consume recreationally.

If you are an employer and have not already done so, develop a drug and alcohol policy, in consultation with a lawyer experienced in employment law and an experienced occupational health professional, with knowledge of this area. Ensure your policy reflects legal cannabis.

This is best done before an issue arises, rather than after.

If you receive a request from an employee to accommodate medical marijuana, be methodical. Strive to fully understand the employee’s situation. Then, determine if and how you can accommodate it.

Whether you are an employee or an employer, this is an area where it is crucial for you to get advice from an experienced lawyer, and an experienced occupational physician or other occupational health professional with knowledge of medical cannabis as it relates to work.

Susan Kootnekoff is a lawyer with Inspire Law in Kelowna. The content of this article is intended to provide general information, not legal advice. If you would like to reach Inspire Law, call 250764-7710 or info@inspirelaw.ca.