In a recent interview with Mr. Stuart E. Rudner, a prominent Employment Law lawyer, Partner at Rudner McDonald LLP in Toronto ON, author of author of You’re Fired! Just Cause for Dismissal in Canada and The Canadian HR Law Guide, he provided his thoughts on the intersection of Employment Law and HR.
During this discussion, he brought up a really interesting point about the common pitfalls of HR practitioners today. The issue of accommodation based on protected grounds are, as he describes, one of the biggest issues in HR practice today. This is increasingly relevant for the subject of accommodations for the use of medicinal cannabis in the workplace.
Use of Prescription Drugs and Protected Grounds Under the Charter Of Human Rights
Medical marijuana engages the same principles of accommodation based on protected grounds as any other doctor prescribed drug. Medicinal cannabis must be treated like any other prescription medication. An employee’s use of medicinal cannabis triggers an employer’s statutory obligations. Section 5.1 of the Code mandates that an individual has the right to equal treatment with respect to their employment without discrimination on the grounds of “disability”. Employees may be prescribed medical marijuana to cope with a number of conditions such as arthritis, cancer, chronic pain, or sleeping disorders.
Ask a Lawyer Who Knows
As a follow up to our initial interview, I asked “Would you be open to providing more insights on an issue you mentioned; that there continues to be significant misinformation out there about accommodation of protected grounds, such as disability and childcare obligations. Namely, what do you see as the biggest points of misinformation, and how could HR practitioners recommend improvements to the policies, or policy application to avoid these pitfalls?”
Mr. Rudner provided this response (in bold):
[Rudner] There are two types of misinformation. The first relates to a lack of knowledge regarding the types of accommodation that might be required. Everyone knows that physical disability, such as a bad back, is to be accommodated.
However, when requests are made for accommodation of items such as medicinal marijuana, many employers reject them hastily, assuming that they have no obligation to consider them.
Employers often hastily (and wrongly) reject requests for accommodation for use of medicinal marijuana
Employers need to understand that they must document any request for accommodation along with their efforts to assess possible forms of accommodation. They will need this to justify any decision the make, particularly if they reject the request.
Employers needs to document and justify every accommodation decision
The other frequent type of misinformation relates to privacy laws. Many employers are scared to request information in support of a request for accommodation, ensuring that they will breach the employee’s right to privacy.
While employers are not entitled to extraneous or irrelevant information, they are entitled to understand any limitations upon the employee’s ability to carry out their job duties. They should not ask for more than that, but can insist upon that in order to respond to a request for accommodation.
Accommodating Medicinal Cannabis and Occupational Health & Safety
In the context of Occupational Health and Safety, employers have the duty to “take every precaution reasonable in the circumstances for the protection of a worker.” Thus, employees do not have a right to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers.
In order to appropriately gauge the employee’s capacity to continue to perform their job safely, the employer should request medical documentation from the employee that speaks to the ability to safely carry out assigned duties. This issue speaks to Mr. Rudner’s comment that employers have a responsibility to seek out appropriate information in order to make an appropriate decision for accommodation of the employee. Asking for this assessment is a reasonable request, understanding that the employee’s privacy must be upheld.
Getting Medical Documentation on Meaningful Impairment
If the inquiry discloses a meaningful impairment in the employee’s capacity to carry out their job, then the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment. Employees in safety-sensitive positions must inform their employers if they are going to be using medical marijuana.
Medical consultation must be conducted to determine if there is meaningful impairment in the employee’s capacity to carry out their job
Obligations to Accomodate
The employer’s obligation to accommodate does not end when a meaningful impairment of the employee’s ability to perform their current job becomes apparent.
As an HR practitioner, it is important to understand and advise that the employer will likely be obligated to accommodate the employee in other ways. This includes devising respectful and dignified employment alternatives, such as allowing the employee a leave of absence while undergoing marijuana treatment, or providing the employee with alternative forms of work that do not engage safety concerns.