Weed in the Workplace: Considerations for Employers in Accommodating Medical Marijuana
By Matthew Larson and Matt Allard, Fasken
How should an employer respond when an employee submits a request to use medical marijuana in the workplace? How does an employer balance the employee’s rights against an employer’s obligations to ensure a safe workplace? Continue reading to learn the answers to these questions…
Human Rights Landscape
Human rights laws across Canada prohibit employers from discriminating against employees that have a characteristic protected by human rights legislation. Protected characteristics include disabilities. Faced with an employee suffering from a disability, an employer has a duty to accommodate the employee to the point of undue hardship.
Accommodation means taking steps to alter the workplace or working conditions to make it more suitable to the employee’s needs in a way that ensures that the employee is not unfairly disadvantaged based on the disability. An accommodation may mean allowing an employee to use medication to treat their disability.
What is “the point of undue hardship”? Accommodating to the point of undue hardship means that an employer must provide accommodations, unless there would be a very serious hardship on an employer, such as unbearable financial costs, serious safety risks, or significant disruptions to operations. The term implies that some amount of hardship is to be expected. Mere inconvenience to an employer or other employees will not constitute undue hardship.
Application to Medical Cannabis
Employers should treat medical cannabis the same way that they treat other substances used to treat disabilities. We recommend an employer carry out the following process.
1. Obtain information regarding the underlying condition and confirm there is a medical basis for the use of medical marijuana
An employer’s first step in assessing if it has a duty to accommodate the use of medical marijuana is to seek reasonably necessary information from the employee seeking accommodation. In that regard, prior to making a decision regarding an employee’s request, an employer is entitled to information confirming that the employee has a disability-related need to use medical cannabis, and about any functional restrictions arising as a result of the disability or medical cannabis use. An employer is entitled to receive this information from a medical professional. Any such request should, however, be made through the employee.
Notably, however, an employer’s right to information is restricted to only reasonably necessary information, and it does not generally have the right to know the employee’s diagnosis or detailed information regarding treatment.
2. Consider what steps an employer can take to accommodate the use of medical marijuana
Once an employer confirms that accommodation is necessary, an employer must accommodate the employee to the point of undue hardship.
The accommodation required will vary on a case by case basis, but it may mean allowing additional breaks to use medical cannabis, modifying hours of work, transferring the employee to a less safety-sensitive position, altering the employee’s duties, providing time away from work, and/or setting up a location that the employee may take their medication.
An employer should not make assumptions in the accommodation process – such as assuming that the use of medical marijuana will result in impairment, thereby creating a safety hazard. If more information is required, an employer should request more information.
3. Consider whether the accommodations would create undue hardship
While the point of undue hardship is a high threshold to meet, an employer will have reached the point of undue hardship if, despite accommodation, the employee is unable to carry out the essential duties of their job. It would also almost certainly be considered undue hardship where introducing the use of cannabis at the workplace results in an increased safety risk to the employee seeking the accommodation, other employees or the public.
An employer considering an accommodation should carefully document the steps that it has taken to reach the point of undue hardship. Such documentation should include documents related to an employer considering possible accommodations.
In sum, where an employee requests the use of medical marijuana, employers must undertake a structured, but case-by-case, accommodation process to determine whether it has a duty to accommodate. If so, an employer must assess whether the employee can be accommodated without undue hardship. Notably, the duty to accommodate will be limited by employers ‘obligation to ensure a safe work environment’, and will not likely extend to a requirement for an employer to accept an accommodation that compromises safety.
Matthew Larsen is a partner, and Matt Allard is an associate in the Labour, Employment and Human Rights practice group at the law firm Fasken. Fasken is one of Canada’s leading business law firms, with more than 700 lawyers, spread across 7 offices in Canada and 3 offices around the globe. More information can be found at www.fasken.com.
This column is intended to convey brief, timely, but only general information and does not constitute legal advice. Readers are encouraged to speak with legal counsel to understand how the general issues noted above apply to their particular circumstances.