Stuart presented on medical marijuana in the workplace at a LegalEase Breakfast Seminar hosted by the Human Resources Professional Association (HRPA) on February 25, 2016.

1. Medical Marijuana
in the Workplace
HRPA LegalEase
Breakfast Seminar
February 25, 2016
Presented by
Stuart E. Rudner

2. 1. The State of the Law
2. The Duty to Accommodate
3. Employee disclosure of medical
information
4. Best practices for accommodation
Overview

3. 3
Introducing Medical Marijuana
R v. Parker: 2000
ONCA case that
called for
legalisation
2001:
Government
introduces
Marihuana
Medical Access
Regulations –
need
prescription +
license
2014: Marijuana for Medical
Purposes – only need
prescription

4. Health Canada estimates that
450,000 Canadians will
turn to using legal medical
marijuana in the next 10
years
4

5. The Law

6. THE LAW
Regulation SOR/2013-119 of the Controlled Drugs
and Substances Act
(2) The following persons may possess dried marihuana:
(a) a person who has obtained the dried marihuana for
their own medical purposes or for those of another
person for whom they are responsible
(i) from a licensed producer, in accordance with a
medical document,
(ii) from a health care practitioner in the course of
treatment for a medical condition, or
(iii) from a hospital, under subsection 65(2.1) of the
Narcotic Control Regulations;
6

7. THE LAW
 Health Canada maintains a public
database on authorized licensed producers
of medical marijuana
 Need: prescription from doctor to obtain,
but no longer need for licence from Health
Canada
 Federal government now only responsible
for licensing producers, not possessors
7

8. THE (CASE) LAW
1. R v. Smith (2015, SCC): Expanded
definition of “medical marijuana” to
include any form of the drug – e.g.
brownies, teas or oils
2. Wilson v. Transparent Glazing Systems
(BCHRT): employer obligation to ask if
medication was affecting ability to
perform job

9. THE (CASE) LAW
3. Decision No. 1330/14 (WSIAT, 2015): an
employer can be required to reimburse a
worker for medical marijuana cost if taken
for a workplace injury
4. Calgary (City) v Canadian Union of Public
Employees (2015, Alberta): duty to
accommodate off-hours use of medical
marijuana even in a safety-sensitive position

10.  EMPLOYERS: duty to accommodate
marijuana like any other prescription
drug
 Competing duty to take every
reasonable precaution to protection
worker under OHS legislation
10

11. 11
The Duty to Accommodate

12. Discrimination
“Adverse treatment of a person on the
basis of a prohibited ground”
 Leading case: British Columbia (Public
Service Employee Relations
Commission) v. British Columbia
Government and Service Employees’
Union, [1999] 3 S.C.R. [“Meiorin”]
12

13. Discrimination: The Meiorin Test
TEST: Unified
Approach to
adverse effect and
direct discrimination
Plaintiff:
Establish prima facie discriminatory conduct
Employer:
1. Standard was rationally connected to job
performance
2. Honest and good faith belief of its necessity
3. Reasonable and necessary for legitimate
purpose
13

14. Discrimination: The Meiorin
Test
If employer fails to
establish these
three criteria,
conduct is deemed
discriminatory
14

15. Accommodation
Sometimes people need individual
arrangements so they can do their jobs,
access services and buildings, and enjoy
housing equally – this is called
accommodation.
15

16. The Duty to Accommodate
Employers are under a duty to
accommodate, up to the point of undue
hardship, an employee protected by
the Ontario Human Rights Code’s
“grounds of discrimination.”
Subject to bona fide occupational
requirement
16

17. Disability
 30-50% of human rights claims are on disability
 Defined as:
(a) any degree of physical disability, infirmity, malformation or disfigurement that is
caused by bodily injury, birth defect or illness and, without limiting the generality of the
foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis,
amputation, lack of physical co-ordination, blindness or visual impediment, deafness or
hearing impediment, muteness or speech impediment, or physical reliance on a guide
dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in
understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the
insurance plan established under the Workplace Safety and Insurance Act, 1997
17

18. Canada v. Johnstone, 2013 FC
113
 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.
18

19. Process of Accommodation
 Process is to be 2 (or 3) way dialogue
 Employee must produce appropriate
(medical) documentation to support their
need for marijuana use
 Employer entitled to know:
limitations on ability to carry out job functions
19

20. The Active Role of Workers in
Accommodation
 Fretz v. BDO Canada LLP: Employee is not
entitled to their preferred form of
accommodation
– Hearing impaired employee wanted
interpreter
– Employer provided keyboards and computer
screens to communicate
– HRTO: This was NOT failure to accommodate
 Employer offered appropriate accommodation that
employee refused
20

21. Q. I don’t like the idea of my employees
using marijuana on the job. Can I say no to
a request from an employee for
accommodation of medical marijuana?
A. DO NOT ever refuse an employee’s
request for accommodation out of hand.
21

22. The law expects that:
1. There will be a real effort to
accommodate the request; and
2. There may be some hardship in
accommodating the request.
22
Bottom Line:

23. Undue Hardship
 Duty to accommodate may not need to be
fully met if it causes undue hardship.
 High standard to meet
 Severe negative effects outweigh benefit
of accommodation
23

24. Undue Hardship
 Consider:
1. Financial Costs
2. Health and safety risks
 E.g. second-hand smoke
24

25. The Code takes priority over
all contracts
NOT UNDUE
HARDSHIP
 Providing assisted
support equipment
at some extra cost
 Business
Inconvenience
 Customer/Staff
Complaints
UNDUE HARDSHIP
 Changing to
different product
outside of expertise
 Bordering on
banrkuptcy
25

26. What is Undue Hardship?
 British Columbia (Superintendent of Motor
Vehicles) v. British Columbia (Council of
Human Rights)(“Grismer”): High standard
to establish cost as undue hardship –
needs to be:
– Quantifiable
– Related to accommodation
– So substantial it would alter essential
nature/viability of enterprise
26

27. What is Undue Hardship?
27
Past history (health and
employment) is relevant when
assessing extent of undue
hardship – Hydro-Quebec v.
Syndicat (2008, SCC)
Not discriminatory to
dismiss employee who
has no foreseeable
prospect of returning to
work - Asante v.
Plastcoat (2009, OHRT)
Duty to accommodate even
if it violates the collective
agreement – Central
Okanagan School Distrct v.
Renaud

28. Health and Safety Risks

29. Occupational Health and
Safety Act
 S.25: Duty on employers to “take every
precaution reasonable in circumstances to
protect a worker”
 Employees can’t show up to work impaired
if it endangers others

30. Gauging Capacity to Work
 Request medical documentation from
employee on ability to safely carry out
duties
 Meaningful impairment to ability could =
basis for refusal to accommodate
 HOWEVER, must still accommodate in
other ways, e.g. modified duties
30

31. Dos and Don’ts
DO:
• Obtain information speaking directly to
employee’s ability to do job
• Consider hazards
• Request as much information as possible
to make decisions
• Document thorough assessment

32. Dos and Don’ts
DON’T
• Request specific diagnosis
• Request information irrelevant to job
duties
• Request entire medical file

33. Example: Nason v. Thunder
Bay Orthopaedic Inc.
 Worker suffered numbness due to vibrations
from his work equipment
 Er said he could no longer be accommodated
 Court found he had failed to provide
confirmation of his physical ability to work
 Employer cannot assess ability to accommodate
disability without knowing level of disability and
accommodations necessary
33

34. Additional Hazards
 Ivancicevic v. Ontario (AGCO): passive
inhalation could = some level of
impairment/complications
– Can you ask an employee to smoke privately?
– What about asking them to ingest instead of
smoking?
 Potentially yes – however, beware of challenges
from employee based on increased cost or
differences in medical efficacy
 Any impairment must be in safe and acceptable
fashion

35. 35
Best Practices

36. 36
Design and
implement policy
Revise offer letters
Ensure compliance

37. Design a Marijuana
Policy
 Effective, precise communication of
employee’s entitlements and obligations
 Specifically define “impairment”
 What is acceptable
 Collaborate with workplace health and
safety committee

38. Implementing Policies
 Publicize policies
 Train all employees: staff, managers,
supervisors, executives
 Monitor behaviour
 Discipline offenders
 Update regularly
 Incorporate into employment contracts
38

39. What should accommodation
look like?
 Modified or shuffled duties if necessary
 Possible separate “smoking” areas –
though note potential hazards to others
 Make sure it is clear when employee is
required to report use of marijuana at
work
 Working in conjunction with employee
39

40. What should accommodation
look like?
 NOT: creating a completely different job
 LL v. Treasury Board (Statistics Canada)
[2009] CPSLRB No. 13: duty to accommodate
does not go so far to require new position “out
of bits and pieces” without considering
operational requirements
40

41. 41
Deal with Suspected
Abuse
• Set acceptable boundaries
• Put reporting procedure in place
for use/abuse during work hours
• Communicate disciplinary
consequences of policy breach

42. What about drug tests?
 LIMITED circumstances
– Sufficient evidence: marijuana
“problem” vs. merely smelling of
marijuana (not enough)
– Could be appropriate after an incident,
part of agreed rehab program
Deal with Suspected
Abuse

43. Drug Tests: What does the
Law Say?
 Entrop v. Imperial Oil Ltd.: post-incident/for cause drug
testing only acceptable as part of larger drug
assessment program
– otherwise, random drug testing = poor indicator of present
impairment
 Alberta v. Kellogg Brown (Chiasson): zero-tolerance
policy on failure of drug tests discriminatory, but can =
BFOR for safety-sensitive position
 Milazzo v. Autocar Connaisseur Inc.: random drug testing
of bus drivers = discriminatory but reasonably necessary
for legitimate purpose of road safety
43

44. 44
Drug Tests: Bottom Line
 Employers considering drug testing
must establish (per Entrop)
1. Is there a rational connection between
testing and job performance
2. For the specific employee: objective
basis for believing absenteeism is
related to drug dependency?
3. Objective basis for believing drug use
= safety risk for other workers?

45.  Random drug testing: avoid, unless in a
safety sensitive position (OHRC Policy
on Drug Testing)
– OHRC: random drug testing is an
unjustifiable intrusion into rights of
employees
– Duty to accommodate employees who test
positive
45
Drug Tests: Bottom Line

46.  DO NOT draw adverse inferences
from refusal to submit – could =
discrimination – Halifax (Regional
Municipality) v. Canadian Union of Public
Employees, Local 108 (2013)
Deal with Suspected
Abuse

47.  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

48. Avoid a Human Rights
Lawsuit
Be smart and
seek legal
advice!

49. 49
Stuart E. Rudner
srudner@rudnermacdonald.com
Toronto: 416-640-6402
York Region: 905-530-2484
www.rudnermacdonald.com
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