Stuart Rudner spoke at the Benefits3 Conference 2016 where he addressed medical marijuana; finding the balance between the duty to accommodate and the need to keep the workplace safe.

1. Medical Marijuana
in the Workplace
Presented by
Stuart E. Rudner
April 14, 2016
Medavie Blue Cross Benefits 2016 Conference
Moncton Delta Beausejour

2. 1. The State of the Law
2. The Duty to Accommodate
3. Using Policies
4. The Accommodation Process
Overview

3. The State of the Law

4. 4
Introducing Medical Marijuana
2001: Government introduces
Marihuana Medical Access
Regulations – need
prescription + license
2014: Marijuana for Medical
Purposes – only need
prescription
As a result…
Health Canada estimates that 450,000 Canadians will
turn to using legal medical marijuana in the next
10 years

5. 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;
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6. 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 licence from Health Canada
 Federal government now only responsible for
licensing producers, not possessors
 Patients can now grow their own medical
marijuana - Allard v. Canada (Federal Court,
February 2016)
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7. 7
The Duty to Accommodate
(not a one way street)

8. 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
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9. 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 options and determine if
any are viable.
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10. Undue Hardship
 Accommodation not required if it causes
undue hardship.
 High standard to meet
 Severe negative effects outweigh benefit
of accommodation
10

11. What is (or is not) Undue
Hardship?
 Consider:
1. Financial Costs (bankruptcy?)
2. Health and safety risks
 E.g. second-hand smoke
3. Impact on nature of operation
NOT
 Business Inconvenience
 Customer/Staff Complaints
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12. 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
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13. 13
Using Policies

14. Implementing Policies
 Incorporate into employment contracts
 Publicize policies
 Train all employees: staff, managers,
supervisors, executives
 Monitor behaviour
 Discipline offenders
 Update regularly
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15. Design a Drug Policy
 Collaborate with workplace health and
safety committee
 Effective, precise communication of
employee entitlements and obligations
 What is acceptable and not
– what about prescription medication?

16.  LIMITED circumstances where permissible e.g.
sufficient evidence of a problem
 Test must be justified under the Entrop decision
criteria:
– Rational connection between test and job
performance
– Objective basis to believe conduct related to a
drug dependency?
– Is drug use objectively a safety risk for other
workers?
Deal with Suspected
Abuse: Drug Tests

17. 17
The Accommodation Process

18. Process of Accommodation
 Process is to be 2 (or 3) way dialogue
 Request medical documentation from employee
on ability to safely carry out duties
 Employer entitled to know:
limitations on ability to carry out job functions
 Assess need for accommodation
 Then assess accommodation options
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19. What should accommodation
look like?
 Modified or shuffled duties if necessary
 Modified hours
 Leave of absence
 etc
 Make sure it is clear when employee is
required to report use of marijuana
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20. What should accommodation
look like?
 NOT: creating a completely different job
 Lafrance v. Treasury Board (Statistics
Canada) [2009] CPSLRB No. 113:
duty to accommodate does not go so far
to require new position “out of bits and
pieces” without considering operational
requirements
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21. CASE LAW
Wilson v. Transparent Glazing Systems (BCHRT):
employer obligation to ask if medication was
affecting ability to perform job
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

22. 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

23. What about non-safety sensitive
positions?
 Little case law on accommodating
marijuana in non-safety sensitive positions
 Frequent issue in the area of services
– Starnes v. Royal Canadian Legion – need to
make effort to accommodate marijuana use
for legion member
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24. 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

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

26.  Accommodating disability = accommodating
treatment
 Treat all requests for accommodation seriously
 Educate yourself about medical marijuana
 Document all efforts to accommodate
GET LEGAL ADVICE
Avoid a Human Rights
Lawsuit

27. 27
Stuart E. Rudner
srudner@rudnermacdonald.com
Toronto: 416.640.6402
York Region: 905.530.2484
www.rudnermacdonald.com
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