2016 Beneplan HR Workshop - Marijuana in the Workplace and Travel Insurance Legalities - Presented by Davies Howe Partners LLP
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This document discusses various topics related to marijuana, including: - Marijuana is already widely used in Canada despite its legal status. - Employers have a duty to accommodate medical marijuana use by employees. - Recreational marijuana use in the workplace could be restricted by policies limiting non-medical use. - Travel insurance may cover costs associated with cancelled trips due to certain covered risks like medical emergencies, but pre-existing conditions are often excluded.
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2016 Beneplan HR Workshop - Marijuana in the Workplace and Travel Insurance Legalities - Presented by Davies Howe Partners LLP
- 1. Disclaimer I am a lawyer. But… … nothing in this presentation should be taken as legal advice. Your legal situation is unique. To obtain legal advice, contact a lawyer. Don’t rely upon the info in this presentation.
- 2. Marijuana in the Workplace (what you need to know)
- 3. Marijuana is not on its way it has already arrived
- 6. Producers Listed on TSX
- 7. There’s an app for that…
- 8. Controlled Substance illegal to possess, produce or traffic
- 9. 11% of Canadians use it every year 25% of Canadian youth age 15 - 24
- 10. Brief History 1920s – Prohibited in Canada 2001 – Medical Marijuana Access Program 2014 – Marijuana for Medical Purposes Regulations (MMPR) – “Doctor’s note” 2015 – Government commitment to legalize – R. v. Smith SCC – “alternate forms” 2016 – Access to Cannabis for Medical Purposes Regulations (ACMP) – “grow at home” 2017 – Legalization legislation to be introduced
- 11. CBD the other Cannibidoil Key ingredient in cannabis Non-psychoactive (unlike THC) Wide range of medical benefits
- 12. Therapeutic Benefits Nausea Weight and Appetite Loss Palliative Care Glaucoma MS Chronic Pain IBS
- 13. Forms of Cannabis Dried Herbs Oil Hash Concentrates Foods and Beverages
- 14. Mary’s Story By ashton (Flickr: When in Amsterdam…)
- 15. Medical Marijuana in the Workplace Treated the same as other prescription drugs Cannot discriminate based on a disability Medical marijuana prescribed to treat Disabilities Employer has a duty to accommodate to the point of undue hardship
- 16. Medical Marijuana in the Workplace Duty to accommodate: • Only to the extent that it will not endanger the safety of other employees • When impairment is an issue, may need to find other suitable work to accommodate employee • Runs both ways • Employee may be required to show not impaired
- 17. Questions arising from requirement to be medicated at work Impairment? Need for an area to smoke joints? Force use of alternate forms?
- 18. Recreational Marijuana in the Workplace
- 19. Recreational Marijuana in the Workplace Recreational use not the same as medical Rules same as for other drugs and alcohol Policies limiting or banning non-medical use in workplace – must be cautious – French v. Selkin Logging case from B.C.
- 20. Jane’s Story
- 21. Safety Sensitive Positions 0 impairment + 0 impact on ability to perform duties = No basis to reprimand*
- 22. Drug Testing Often not justifiable under the law Need evidence of drug problem in workplace causing danger
- 23. Problems with Drug Testing Urine test which tests for presence THC = Fat-soluble Stays in system for up to 30 days
- 24. Health Plan Questions Who pays for medical marijuana? Will it be covered by insurance? WSIB? Incorporate into collective agreement?
- 25. Health Plan Questions Need to better screen fake medical needs? Organization challenging prescriptions?
- 27. Trip Cancellation Insurance Sun Mo Tue We Thu Fri Sat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
- 28. Sun Mo Tue We Thu Fri Sat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Trip Interruption Insurance
- 29. How Obtain Travel Insurance? Credit Card Independent Purchase Employment Group Policy
- 30. Typical Covered Risks Biggest Misconception Usually 20 to 50 Covered Risks If not set out in the policy, not a covered risk
- 32. Typical Covered Risks Emergency Medical Treatment for Sickness or Injury Early Term Pregnancy Complications Legal Adoption Death (you, companion, family member, host)
- 33. Typical Covered Risks Summons to serve in army Loss of Job Jury Duty Quarantine
- 34. Typical Covered Risks Delay of scheduled carrier due to weather Delay of private automobile due to mechanical failure Delay of connecting carrier
- 35. Expenses/Treatments covered: Hospitalization Bedside Attendance Return of Family Emergency Med Members Treatment Medical Baggage Transportation Return
- 36. Exclusions Pre-Existing Medical Conditions Self-Inflicted Injuries Medical Conditions Related to drugs
- 37. What Repaid? Non-refundable portion of travel arrangement to policy maximums
- 38. How/When Make Claim? If possible, call insurer to advise of issues prior to making arrangement. Alternatively, as soon as possible after treatment
- 39. Thank You Robert Richler Associate Lawyer 416.263.4517 robertr@davieshowe.com www.davieshowe.com
Editor's Notes
- Dispensaries popping up all over Toronto and other major metropolitan areas
- - Recent changes in insurance industry moving toward more acceptance of marijuana use with knowledge of impending legalization. - Being handled differently. Used to be considered like tobacco smoking in calculating premiums (smoker v. non-smoker) recent change in rating occasional marijuana users. - looking toward creating policies on legalization and incorporating in medical plan coverage.
- Canopy Growth Corp. – July 2016
- Already apps for it such as Aurora Cannabis’ for purchasing over the internet. Aurora is a leading producer of legal cannabis in Canada. Currently facility has a maximum legal capacity of 7,000 kilograms per year (equivalent to 14 million joints). Expects to increase 10 fold
- Most commonly used illicit substance in Canada Second most used recreational drug (after alcohol) Quest Diagnostics, which conducts millions of workplace screens in the united states each year advises that it is the most commonly detected illegal drug in workplace testing. Rate of usage is increasing across North America. Increasing higher in states where legalized. combined recreational and medicinal market growing to $7.4 billion ($5.6 billion) in five years. Health Canada estimated that there will be as many as 450,000 medical marijuana users in the next decade
- 11% of Canadians aged 15 or older reported having used marijuana at least once in 2013. Higher usage rate among youth - 25% of youth aged 15-24 (among the highest in the world) Most Canadians support legalization, taxation and regulation marijuana. Forum Research poll concluded that up to 5.5 million Canadians smoke pot illegally already. And up to 8 million would do so once legalized.
- End of Life – Nausea (chemo), weight loss/appetite (Cancer/HIV/Aids), PC Pain and Suffering – Glaucoma, MS, Pain syndrome, Chronic Pain, IBS
- - Usually smoked but also vaporized, eaten or oil - Different forms work better for different conditions - Oral administration has slow onset, long duration of action and is less predictable. Inhalation allows for rapid relief and tighter control of the amount of the drug being consumed.
- - Section 5.1 of the Ontario Human Rights Code, RSO 1990, c H.19 requires employers to treat employees equally without discrimination on the basis of disability. - Section 25 of the Ontario Occupational Health and Safety Act RSO 1990, c 0.1. requires employers to take "every precaution reasonable in the circumstances for the protection of the user”
- - Health Canada recommends 3 to 6 joints per day (or similar amount taken orally) for pain control. Different methods of use work better for different people. To deal with pain may need extra breaks. - Can they put in place policies which say must use non-smoked varieties of marijuana? Likely will violate human rights given that different forms of the drug have different advantages and disadvantages. Requiring employee to eat, rather than smoke, could risk impacting the intoxicating effect and therefore the safety of some workplaces.
- Recreational use not the same as medical Rules surrounding recreational use in the workplace expected to be the same as for other drugs and alcohol where intoxication is an issue Can develop policies limiting or banning non-medical use in workplace – must be cautious French v. Selkin Logging, 2015 BCHRT 101 – wrongful dismissal action – logger working in B.C. Cancer survivor diagnosed with recurrence of cancer while working for Selkin. Using marijuana medicinally to help with pain under doctor’s ok (not recommendation) - but without a doctor’s note. Testified that never intoxicated by the marijuana while working. Prima facie case of discrimination. BFOR under the code? Meiorin Test - Position is that there was zero tolerance for safety reasons. Rationally connected to job performance? Yes Adopted in honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose? Yes - Reason is safety Is the standard reasonably necessary to accomplish the work related purpose (must be impossible to accommodate in another way without imposing undue hardship)? Not necessarily However, French did not have medical authorization to smoke so was treated as a recreational marijuana user. Termination of employment was reasonable.
- Recreational use not the same as medical Rules surrounding recreational use in the workplace expected to be the same as for other drugs and alcohol where intoxication is an issue Can develop policies limiting or banning non-medical use in workplace – must be cautious French v. Selkin Logging, 2015 BCHRT 101 – wrongful dismissal action – logger working in B.C. Cancer survivor diagnosed with recurrence of cancer while working for Selkin. Using marijuana medicinally to help with pain under doctor’s ok (not recommendation) - but without a doctor’s note. Testified that never intoxicated by the marijuana while working. Prima facie case of discrimination. BFOR under the code? Meiorin Test - Position is that there was zero tolerance for safety reasons. Rationally connected to job performance? Yes Adopted in honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose? Yes - Reason is safety Is the standard reasonably necessary to accomplish the work related purpose (must be impossible to accommodate in another way without imposing undue hardship)? Not necessarily However, French did not have medical authorization to smoke so was treated as a recreational marijuana user. Termination of employment was reasonable.
- Strife from workers who want to use recreationally vs. medicinally having different treatment. However, even those jobs people work around it. Recent National Post article on the subject interviewed one Albertan crane operator who gets tested when he starts new jobs and just ensures he is off the drug for sufficient time before testing occurs.
- Where use of medical marijuana does not have an impact on ability to perform safety sensitive duties in a safe manner and no signs of impairment at work, no basis to reprimand employee, notwithstanding medical marijuana use.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Problem with Marijuana test is that it is a urine test which tests for the presence of marijuana in the subject’s system. However, given the nature of the test, it does not test for intoxication. Active ingredient is THC, which is fat-soluble, which means is stays in the system longer than alcohol, heroin, cocaine and other water-soluble substances which flush through the body quickly. Urine tests detect traces of marijuana in the body for up to 30 days. But the tests measure inactive metabolites, not active substances.
- Future requests from employees for coverage for medical marijuana under health care plans and workers’ compensation. Hamilton (City) and Hamilton Professional Fire Fighters’ Assn. (Robillard), Re, 2016 refusal to cover medical marijuana a violation of collective agreement? That case no b/c collective agreement required a drug claim to include the drug id number (DIN). Since marijuana had not been assigned a DIN number, coverage not contemplated by the bargaining process and could not be read in. however, absent such a requirement in the collective agreement, there might have been a requirement to cover medical marijuana.
- Medical marijuana – who pays? Will it become part of insurance coverage? Will there be a need to better screen true medical marijuana usage need v. fakers. Will companies challenge the medical marijuana prescriptions because employees try to take advantage?
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Already apps for it such as Aurora Cannabis’ for purchasing over the internet. Aurora is a leading producer of legal cannabis in Canada. Currently facility has a maximum legal capacity of 7,000 kilograms per year (equivalent to 14 million joints). Expects to increase 10 fold
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Can only use testing if good reason to believe impaired or in certain safety sensitive positions or positions where sobriety are critical such as heavy equipment operators, miners, and truck drivers. Otherwise it is considered an invasion of privacy and potentially discriminatory. The extent to which an employer can require an employee to undergo alcohol and drug testing will depend on the degree of safety sensitivity and demonstrated (not presumed) legitimate need in the particular workplace. The evidence sufficient for the purpose will depend on the circumstances of the particular case, but it must in any event always include cogent direct non-anecdotal evidence from that workplace. The employer must also establish that the rule or policy will probably improve workplace health and safety. Must show that framework is reasonable, clear and unequivocal and the policy and consequences are known to employees and consistently enforced. Less invasive means must be explored.
- Bill 132 took effect on September 8, 2016 Under Bill 132, employers will be requried to develop and maintain a written program to implement the harassment policy in consultation with a health and safety committee or representative. Must include procedures for reporting workplace harassment to people other than direct employer. Result must be relayed to the alleged victim and perpetrator in writing