Medical Marijuana in the Workplace
The Impact of New Laws and Guidance for Employers
Carl Cunningham, Partner
Bennett Jones LLP
Email: cunninghamc@bennettjones.com
Phone: (416) 777-4847
October 22, 2014
Outline
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Marijuana – The Basics
Medical Marijuana – The Uses
Medical Marijuana – The Legal Framework
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Marihuana Medical Access Regulations ("Old Laws")
Marihuana for Medical Purposes Regulations ("New Laws")
Guidance to Employers
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Approaching the Subject of Medical Marijuana
Reviewing and Updating Company Policies
Understanding Legal Duties
Preparing for Future Developments
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Marijuana – The Basics
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Types
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Cannabis Sativa
Cannabis Indica
Biology
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Cannabinoids
• Natural compounds found in the marijuana plant
• Two main types of cannabinoids
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Tetrahydrocannabinol ("THC"), and
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Cannabidiol ("CBD")
• THC is the most abundant, and CBD is the second
• THC produces the psychoactive effects most associated with marijuana consumption
• CBD may reduce users' psychoactive symptoms
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Researchers believe this gives CBD greater medicinal potential
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Marijuana – The Basics (cont'd)
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Side-Effects of Marijuana Consumption
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Types
• Users of marijuana have been documented to experience the following side-effects:
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Short-term memory problems;
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Impaired thinking;
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Loss of balance and coordination;
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Decreased concentration;
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Changes in sensory perception;
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Impaired ability to perform complex tasks;
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Decreased alertness; and
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Decreased reaction time
Duration
• The side-effects of using marijuana may last between 2 and 6 hours
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Medical Marijuana – The Uses
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Studies suggest that marijuana could be used to treat a range of illnesses and
conditions. Included in this range are:
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Acute and chronic pain;
Anxiety and depression;
Sleep disorders;
Post-traumatic stress disorder;
Schizophrenia and psychosis;
Alcohol and opioid withdrawal symptoms;
Inflammation;
Irritable bowel syndrome;
Obesity; and
Diabetes
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Medical Marijuana – The Legal Framework
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Old Laws
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Came into force July 2001
Created a system through which persons could legally possess and grow dried marijuana
• Three options:
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Grow it yourself – Personal Use Production License ("PUPL")
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Designate someone to grow it for you – Designated-Person Production License ("DPPL")
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Purchase it from Health Canada
Caused a significant increase in the number of persons in Canada with legal access to dried
marijuana
• 2002 – 477 authorized users
• End of 2013 – approximately 40,000
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Medical Marijuana – The Legal Framework (cont'd)
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New Laws
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Came into force April 1, 2014
Replaced the old laws
Eliminated many of the barriers to persons accessing dried marijuana for medical purposes
• Old laws required prescribing doctors and applicants to declare that the applicant was gravely ill
and medical marijuana was their only option
• Old laws restricted the symptoms for which persons could use medical marijuana
• Old laws restricted the ability to prescribe medical marijuana to medical doctors
• Old laws involved a long and complicated application process
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Medical Marijuana – The Legal Framework (cont'd)
Sample Medical Document for New Laws
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Medical Marijuana – The Legal Framework (cont'd)
Comparing the Old Laws to the New Laws
Issue
Old Laws New Laws
Approved for use with a limited set of illnesses
Yes
No
Doctors have to claim marijuana is a viable treatment
Yes
No
Large application forms (20 pages or more)
Yes
No
Specialist medical consultations required
Yes
No
Supply from Health Canada
Yes
No
Personal production licenses
Yes
No
Enforceable production quality standards
No
Yes
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Medical Marijuana – The Legal Framework (cont'd)
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The changes introduced by the new laws are anticipated to cause a dramatic
increase in the number of persons with legal access to medical marijuana
This means a growing number of employees may have access to it, creating novel
issues in the workplace
Medical Marijuana Use in Canada
600000
400000
200000
0
2002
2013
2024
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Medical Marijuana – The Legal Framework (cont'd)
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Estimates on increase in use of medical marijuana were issued prior to the College of
Family Physicians of Canada issuing their report at the end of September 2014 on
when family physicians should authorize "dried cannabis"
College concerned that "dried cannabis" has not been reviewed by Health Canada in
same manner as other prescription medications
College's key recommendations that may limit prescriptions include:
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Only consider for patients with neuropathic pain that has failed to respond to standard
treatments
Dried cannabis is not appropriate therapy for anxiety or insomnia
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Guidance to Employers
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Approaching the Subject of Medical Marijuana
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Take requests seriously
Don't stigmatize medical marijuana
• Medical marijuana presents similar issues as Percocet and Oxycotin
• Change perception form illegal drug to prescription medication
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Appreciate the complexities of testing for marijuana consumption
• Many methods to test for previous drug consumption exist. They include the analysis of hair,
saliva, urine, or sweat
• Different methods have different "windows of detection"
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Saliva – 1 to 36 hours
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Urine – 1 to 3 days
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Sweat – 1 to 14 days
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Hair – 7 to 100+ days
• Different "windows of detections" mean:
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Two positive tests may not mean the same thing
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Employees who test positive may not be impaired
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Guidance to Employers (cont'd)
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Approaching the Subject of Medical Marijuana (cont'd)
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Acknowledge the difficulties in determining and predicting impairment
• Determining and predicting employees' reactions to marijuana consumption is challenging
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Marijuana's impact on persons will vary depending on their:
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Physical characteristics;
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Environmental surroundings; and
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Use frequency
Different strains of marijuana contain different cannabinoid levels
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Cannabis Indica – higher concentrations of CBD
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Cannabis Sativa – higher concentrations of THC
Marijuana plants of the same strain may have different cannabinoid levels
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THC levels can vary depending on the cultivation technique used and the part of the plant consumed
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Both THC and CBD levels change over time
The consumption method used impacts the onset and duration of marijuana's side-effects
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Guidance to Employers (cont'd)
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Approaching the Subject of Medical Marijuana (cont'd)
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Acknowledge the difficulties in determining and predicting impairment (cont'd)
• New laws may provide some assistance to employers
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The labels used by licensed producers must contain specific information
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THC and CBD levels
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Expiry date
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Stability period
Employers may request this information (or direct it to be provided to employer's health care professional)
from employees using medical marijuana to assist them in predicting impairment levels
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Guidance to Employers (cont'd)
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Reviewing and Updating Company Policies
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Establish acceptable uses of prescription and non-prescription drugs
• Include medical marijuana as a prescription drug
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Define important terms, e.g. "impairment"
• Define broadly (e.g., ensure definition covers any drug (prescription or otherwise) that may affect
employee's performance)
• Some employers could adopt an objective threshold, such as "x" ng/ml
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Coordinate with Joint Health and Safety Committees
Prohibit the sharing or selling of medical marijuana in the workplace
Establish disciplinary consequences for policy breaches
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Guidance to Employers (cont'd)
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Reviewing and Updating Company Policies (cont'd)
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Emphasize employer expectations
• A prescription for medical marijuana does not:
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Excuse employees from carrying out their duties in an unacceptable fashion
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Give employees the right to be impaired at work or to be absent or late without a reasonable explanation
Establish when persons must disclose their use of medical marijuana
• Protocols may differ between persons not yet employed and persons who are employees
• At a minimum, disclosure should be mandatory for all employees with safety-sensitive positions
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Employers' requirement for disclosure could be highlighted in all offer letters for jobs involving heavy
equipment or machinery
Establish procedures to be taken following the disclosure of medical marijuana use even if
no accommodation is requested
• Employers who know their employees use medical marijuana may have additional duties if their
employees' performance levels decrease (Wilson)
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Guidance to Employers (cont'd)
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Reviewing and Updating Company Policies (cont'd)
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Accommodate for current gaps in the law
• Company policies will need to cover the smoking of marijuana because the Smoke-Free Ontario Act
and the Tobacco Reduction Act only apply to the use of tobacco and tobacco products
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Will users of medical marijuana be subject to drug testing? (Treat similar to the manner of
testing for other narcotic medications)
• Law since Irving is evolving, but generally, employers may test employees for drugs in the
following situations:
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Pre-access
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Reasonable cause
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Employer has reasonable cause to believe that an employee is under the influence
Post-accident or near miss
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Before a worker is granted access to a worksite
Following an accident or a close call
Self-identified
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Employee has self-identified as a substance abuser
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Guidance to Employers (cont'd)
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Reviewing and Updating Company Policies (cont'd)
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Establish steps to be taken following a positive test
• Zero-tolerance policies may no longer be appropriate because they are inconsistent with the duty
to accommodate under human rights legislation
• If employees claim that they have medical authorization to use marijuana, employers should:
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Request a copy of the medical document or license; and
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Determine whether accommodation is required and/or possible
• Employers may be unable to dismiss job applicants only because they test positive for medical
marijuana use
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In New Brunswick, the Canadian Human Rights Commission is investigating allegations by a person that
she was not hired by a trucking company because she used medical marijuana and tested positive in a preemployment drug test
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Guidance to Employers (cont'd)
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Understanding Legal Duties
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Duty to Accommodate
• Human Rights Code and the Alberta Human Rights Act
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Employers must accommodate to the point of undue hardship
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Factors to consider in determining what constitutes undue hardship are: cost; health and safety; and
outside sources of funding
• Employers have rights following a request for accommodation (i.e., What can I demand the
employee to provide?)
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Entitled to request to see the employee's medical document or license
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Entitled to obtain a second opinion if there is a reasonable basis to believe that an employee is not fit to do
the job despite a medical report to the contrary
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Guidance to Employers (cont'd)
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Understanding Legal Duties (cont'd)
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Duty to Accommodate (cont'd)
• Duty to accommodate may conflict with duties under Ontario and Alberta's Occupational Health
and Safety Acts (i.e., Can employee demand to smoke in workplace?)
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Employers have a duty to protect their workers' health and safety – s. 25(2)(h) (Ont) and s. 2(1)(a)(i) (Alta)
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The possibility of employees smoking marijuana in the workplace impacts employers' abilities to fulfill this
duty
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Studies indicate that marijuana smoke contains higher concentrations of carcinogens than tobacco
smoke
Location – Not clear duty to accommodate extends to require employers to provide employees authorized
to smoke marijuana with a separate area to do so
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Guidance to Employers (cont'd)
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Understanding Legal Duties (cont'd)
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Duty to Accommodate (cont'd)
• Alternatives to smoking (i.e., Can I tell an employee to find alternate form of using marijuana?)
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Accommodation must be reasonable, not necessarily employee's preference
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Employers may not be forced to allow smoking marijuana at the workplace if alternatives exist that equally
accommodate the employee's disability and permissible to explore alternatives
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Marijuana's medicinal compounds are available in other forms
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Capsules, baked goods, and vapourization techniques
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New laws do not require the authorizing practitioner to specify in the medical document a method that the
person must use, which may provide employers with some flexibility
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All forms of consumption do not provide the same effects
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Whether allowing employees to use an alternative method will satisfy an employer's duty to
accommodate is unknown
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Guidance to Employers (cont'd)
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Understanding Legal Duties (cont'd)
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Duty to Accommodate (cont'd)
• Special considerations for safety-sensitive roles
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Employers' accommodation assessments may differ if the employees hold safety-sensitive positions
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Employers may wish to request an independent medical review or a third party examination
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Employers will need to ensure, however, that these reviews and examinations can provide them with an
adequate assessment of their employees' abilities following marijuana consumption
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This may be challenging given the previously noted unpredictability of impairment
The form of accommodation used by employers may, therefore, need to differ between employees in
safety- and non-safety-sensitive positions
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Employees with safety-sensitive positions may need to be placed on administrative leave
temporarily or change to a non-safety-sensitive position
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Preparing for Future Developments
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Evolving Area
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Recent report from College of Physicians
Current lack of clarity from tribunals and courts given relatively new changes
Need to monitor evolving developments
Potential Requests for Coverage Under Drug Plans
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Using medical marijuana could cost persons approximately $30,000/year
• Makes the possibility of it being covered through a health benefit plan attractive
• An employee has already requested reimbursement, but he was denied
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This case did not involve an employee with a prescription for marijuana, however, it does not close the door
on future employee requests
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Preparing for Future Developments(cont'd)
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Additional changes in the legal landscape
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Old law's restriction to "dried marihuana" held to be unconstitutional
• A court recently said that persons entitled to medical marijuana must be allowed to consume it in
all its forms
• This means that, in the future, employees with a medical document or a license may be
authorized to possess different forms of marijuana
• Developments combined with the commercial producers desire to have more "standardized" or
consistent product (e.g., reduced variability in THC levels) may impact the form of
accommodation given to employees
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Different methods of consumption produce different side-effects
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Employers may need to adopt procedures specific to each delivery method
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Medical Marijuana in the Workplace
Questions?
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Medical Marijuana in the Workplace
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Carl Cunningham, Partner
Bennett Jones LLP
3400 First Canadian Place
P.O. Box 130
Toronto, ON M5X 1A4
Phone: (416) 777-4847
Email: cunninghamc@bennettjones.com
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