Did you know that medical cannabis has been legal in Canada since 1999?
Outside Uruguay, Canada is the only other country in the world to legalize possession, cultivation, and sale of recreational marijuana nationally. According to Health Canada, there were more than 167,000 Canadians registered to purchase medicinal marijuana in 2017. That’s a growth of fifteen hundred times since June 2014.
Although insurance companies are making strides to conditionally cover the costs of medical cannabis under the prescription portion of the benefit plan, at the present time there are two barriers to overcome:
- Medical Marijuana is not an approved drug under the Food and Drug Act
- It does not yet have an assigned Drug Identification Number (DIN)
Once approved for full coverage under a benefit plan, the addition of medical marijuana will have a significant impact on claims usage.
According to the HRPA survey, the five main areas of employer concerns are:
- Employees operating motor vehicles
- Disciplinary procedures
- Decreased work performance
- Employees using heavy machinery
These concerns are not unfounded.
With Marijuana already the most commonly encountered substance in workplace drug testing, employers are concerned with the legalization and social normalization. Will there will be higher incidents of impairment in the workplace—workplace accidents in safety sensitive industries—those operating motor vehicles? In this regard, employers will need to set specific policies regarding cannabis use in the workplace. However, even those employers who have an existing policy feel this does not adequately cover workplace issues. Unlike alcohol, there is no consensus on safe limits of consumption.
To enact a Zero Tolerance, has the potential to place the employer in breach of “duty to accommodate” and open the employer to “discrimination” liability. For example, by law, in the province of Ontario, an employer’s duty to accommodate is to the point of undue hardship. The employee is not entitled to choose the exact form of accommodation—accommodation being based on need, not preference.
HRPA points out that a common mistake made by employers is the assumption that medical cannabis will impair the employee’s ability to complete the essential duties of their position. However, due to the multitude of doses and forms, the level of impairment can fall across a broad spectrum.
But remember, a prescription for cannabis does not entitle the employee to smoke in the workplace. Consider the corporate smoking, scent, and customer relations policies. Using the case example of Gibson v. Ridgeview Restaurant Limited, the employer requested the employee consume their medical marijuana privately, even going so far as to request away from the designated smoking area.
If one does not already exist, now may the time for employers to consider enacting or amending the corporate policy to include a clear definition of “impairment” in a way that captures medical use as opposed to recreational.
A summary of HRPA’s “Clearing the Haze, the Impacts of Marijuana in the Workplace”; a white paper to help employers and the government understand the challenges ahead.
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