policies & procedures
A PRESCRIPTION FOR MARIJUANA DOES NOT ENTITLE AN EMPLOYEE
TO UNFETTERED USE IN THE WORKPLACE. EMPLOYEES HAVE NEVER
HAD THE RIGHT TO WORK WHILE BEING KNOWINGLY IMPAIRED
OR UNABLE TO PERFORM THE DUTIES OF THEIR JOB.
zero-tolerance policy for drug use, including marijuana. A heavy
equipment operator, even one with debilitating back pain, for example,
will almost certainly be prohibited by her employer from
using prescribed medical cannabis on the job. The use would likely
(i) impair her ability to perform her job and (ii) pose a safety
risk to the other employees on site. However, except in this type of
safety-sensitive environment, a blanket zero-tolerance policy for
marijuana use and possession is no longer enforceable.
It is important to note that employers must be proactive in ascertaining
whether accommodation of an employee is required on
grounds of disability. The duty to accommodate, however, is a joint
responsibility and an employee has an obligation to inform the
employer of the need for accommodation. It is further incumbent
on an employee to cooperate in providing adequate information to
substantiate the employee’s limitations and the impact of his disability
on his ability to perform the essential duties of his position.
The employee’s refusal to cooperate in the accommodation process
will be taken into account when assessing whether an employer
has met its duty to accommodate.
When faced with an employee who asserts the right to use
marijuana for medical reasons, an employer, as part of the accommodation
process, can and should request medical documentation
detailing whether the medical marijuana use affects the employee’s
ability to carry out his assigned duties. If that documentation
reveals a significant impairment of the employee’s ability to safely
perform his duties, the employer would not be required to accommodate
the employee’s medical use of marijuana. In the heavy
machine operator example, accommodating the use would cause
the employer undue hardship in light of the safety concerns involved.
The employer’s obligation to accommodate, however, is not
then at an end. The employer would likely be obligated to consider
reassigning the employee to different duties that do not engage
safety concerns, or, alternatively, allow the employee to take a leave
Use of medical marijuana in the workplace also engages the employer’s
responsibilities under the Occupational Health and Safety
Act. Employers have an obligation to “take every precaution reasonable
in the circumstances for the protection of a worker.” In
addition to accommodating an employee with a disability, the employer
must also have regard to the safety of other workers, for
example from second-hand smoke caused by an employee who
seeks to smoke medical marijuana in the workplace.
In light of the broadening impact of medical marijuana use in
the workplace, employers should review their current drug and
alcohol policies to address the legitimate use of medical marijuana
in the workplace and establish well-defined parameters for
that use. n
Susanne Balpataky is a partner at Speigel Nichols Fox LLP and has
practised at the firm since her call to the bar in 1991.
38 ❚ OCTOBER 2016 ❚ HR PROFESSIONAL