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ACOEM’s guidance on medical marijuana: What it means to Canadian employers

With medical marijuana use making its way to the top of the agenda at many workplace health and safety meetings, employers are looking for guidance. Common questions include, should its use be treated as a regular prescription medication? How should results be reported?

Though there is no specific guidance for employers in Canada, The American College of Occupational and Environmental Medicine (ACOEM) recently released Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers. Though helpful, Canadian employers should keep in mind that this document is geared towards U.S. employers. One of the major focuses of the guideline relates to U.S. law; the U.S. federal government is against medical marijuana, while several state governments have endorsed its use.

Duty to Accommodate

One of the key issues in the U.S. relates to disabled worker civil rights protections.  The Americans With Disabilities Act (ADA) protects Americans from discrimination due to disability in similar fashion to Canada’s federal and provincial Human Rights Acts.  ADA, however, is a federal U.S. law, and, as such, does not offer protection of any kind to medical marijuana users because of the federal government’s anti-medical marijuana stance.  This forced some states to introduce their own job protection legislation banning automatic termination of workers who use medical marijuana (employers will have to accommodate workers wherever possible).

A number of judicial case decisions in the U.S. also demonstrate ambivalence in that some decisions have sided on employers’ right to automatically terminate based upon federal law, while other decisions adopted state law in their rulings thereby supporting workers’ rights.

Unlike the U.S., the provincial and federal governments in Canada appear to be aligned in the treatment of these cases. Health Canada permits the drug’s possession and use where it is authorized by a doctor or nurse practitioner (under the new “Marihuana for Medical Purposes Regulations” that took effect in April of 2014) and there has been no opposition from the provinces to date. As such, there are now recognized legitimate medical reasons in Canada where the use of medical marijuana can be authorized, but indeed such use has the potential to impact safety in the workplace. In addition to this, however, human rights legislation in Canada dictates that employers cannot discriminate based on a disability, such discrimination being either real or perceived.

Medical Marijuana: A Positive or Negative Test Result?

ACOEM’s guidance notes that a positive test for marijuana in a registered medical marijuana patient would be reported by the MRO as a “Positive” test to the employer, with an explanation of the drug’s use provided to the employer for the employer’s consideration.  As such, it appears ACOEM is leaving it solely up to the employer to decide the fate of the worker (in non-federally regulated workplaces).

However, it is our opinion that ACOEM’s suggestion that MROs automatically determine an authorized medical marijuana user’s test as positive for THC is fraught with potential legal challenge complications.  Some employers’ drug testing policies require automatic termination of workers for having MRO-determined positive drug tests regardless of explanation, so if the MRO reports a result as positive, he/she may knowingly be participating in a wrongful termination process under state law.  Granted, employers can change their policies to integrate medical marijuana considerations, but even that can be met with challenge in complex collective bargaining situations.

DriverCheck’s default position in Canada is to treat medical marijuana in the same manner as though it is a medication, and, as such, for the MRO to determine the test as “Negative” where proof of legitimate medical authorization and valid possession has been made (with comments to the employer specifically stating that the donor is a medical marijuana user and a fitness for safety sensitive duty medical assessment should be done) in our non-DOT workplace testing programs.  That said, such employers can still be offered the opportunity to request that the MRO determine such tests to be “Positive” if their policy so dictates, but such employers should be reminded of their obligations to comply with the accommodation requirements relating to Canadian federal and provincial human rights legislation, and may be required to sign a waiver accordingly.

Finally, it is very important to note that all U.S. DOT covered employers and workers must comply with all applicable DOT testing policies and procedures.  Currently, DOT (a division of the U.S. federal government) will not accept medical marijuana as a valid medical explanation for a positive DOT-required drug test.  As such, it requires that MROs determine all such tests to be “Positive,” and that all DOT-covered workers who test positive must be removed from DOT-covered safety sensitive duties until full compliance with DOT’s return to duty requirements are met (which would obviously require the worker to discontinue using medical marijuana).

Fit for Duty Assessments

ACOEM’s guidance recommends as best practice that an employee suspected of clinical impairment undergo an occupational medicine assessment  that includes a physical examination.

At DriverCheck, once it is determined that an employee is using medical marijuana (with valid authorization) for medicinal reasons, our Medical Marijuana @ Work program provides you with an employee evaluation that is independent, objective, and based on medical evidence. Our assessments are provided by medical cannabinoid experts and take into account the employee’s occupational history, safety considerations, medical history (with focus on the medical condition being treated and its impact on safety, too), and the appropriateness and effectiveness of their current dose and usage in order to provide you with defensible and concrete recommendations on how to proceed in each case. Our in-depth report will determine whether the worker is fit for safety sensitive duties, whether there are options for alternative treatment given the employee’s medical condition, and a safe return to work process for the worker, including any necessary follow up testing.  For example, drug testing may offer some assistance in determining treatment and dose compliance over time, and may also be of some assistance in identifying divergence.

The other issue ACOEM raised relates to demonstrating impairment caused by medical marijuana, including the need for blood (plasma) tests (THC and THC-OH) to be used as an impairment confirmation tool.  To date, such testing has never been a regular part of workplace surveillance programs.  Blood procurement is looked upon as a physically invasive procedure, with some risk attached (bruising, swelling, phlebitis, nerve and muscle damage, infection, etc.).  That said, there are many occupational health programs that require periodic and emergency blood tests be done, so in the absence of any other tools, blood tests may indeed become adopted in some workplace settings until credible and accurate non-invasive tools find their way to market (oral fluid testing, for example, currently offers identification of “likely” impairment, and could evolve into a more precise tool in the future).  However, laboratories in Canada that are accredited by the U.S. Department of Health and Human Services do not currently include protocols and procedures for THC blood testing in federally regulated drug testing programs.

Again, we do recommend all employers seek medical, legal, and policy expert advice prior to making decisions around how you address the complexities of an evolving medical marijuana treatment world. DriverCheck can assist in this process, and we encourage you to reach out to us with any questions you have around medical marijuana use in your workplace.