How should HR respond if an employee is given a prescription for medical marijuana, and asks to take his or her medication during working hours?
The answer is ‘very carefully’, according to CC Partners
employment lawyer Kelsey Orth
It’s likely that if an individual has a prescription for medical marijuana that their medical condition would qualify as a disability, so the employer is bound by obligations to accommodate the disability.
There is not a lot of case law on the topic, but a B.C. Human Rights Tribunal in 2008 found regardless of policies, an employer cannot fire an employee simply because they failed a drug test. Other cases have shown that even if someone has a prescription for marijuana, they don’t immediately have the right to smoke it wherever cigarettes are allowed because of the potential risks to others.
The main issue for HR is going to be whether use of medical marijuana puts the employee or others at risk. Although medical grade marijuana is supposed to be largely pain relieving without getting individuals high, reports indicate that is not always the case with different people reacting in different ways.
“Most employers with proper policies will say if you’re required to take prescription painkillers with known side effects inform your supervisor,” CC Partners employment lawyer Kelsey Orth says. “Employers can’t pass judgement on what they’re using or doing but seek to ensure there are no safety risks associated. Safety sensitivity is important with regards to any kind of drug. I think a stigma attached to marijuana has to be avoided or ignored by employers and they need to focus on what the actual accommodation is.”
Orth says one of the biggest problems for employers is that science has not yet found a way to accurately measure impairment on drugs. Where alcohol testing can show how impaired someone is, testing for pot and other drugs often only shows whether someone has used one of the substances in the past days or weeks, not whether they are currently impaired.
“It’s going to make it difficult for employers to find an objective test,” Orth says. “I expect the cases we see will be employers making judgement calls and those decisions being called into question.”
If you know or suspect an employee is using medically-prescribed marijuana, your organization’s accommodation obligations have likely already been triggered so proceed like you would with any disability accommodation process. Talk to your employee, get the necessary information from their doctor and ensure you are working to find the best accommodation options for the individual and organization.
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