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The College of Family Physicians’ guidance on authorizing medicinal marijuana: What it means for employers

Now that the decision of who can legally use medicinal marijuana is in the hands of medical professionals, many physicians are looking for direction. Citing a sense of “urgency,” the College of Family Physicians of Canada recently issued a set of recommended guidelines to help doctors navigate through it. We believe some of these recommendations may be helpful to employers as they too try to determine how to deal with the impact of the new Health Canada “Marihuana for Medical Purposes Regulations” (MMPR).

In this post we highlight some of the College’s recommendations, explain how they may be applicable to your workplace, and offer some tips on how your company should address the challenges associated with putting rules around the use of medical marijuana at work in place.

The risk is in the reference – why marijuana may not be covered under ‘medications’ in your company policy

Many employers are under the impression that marijuana will simply be treated as any other medication whose use and disclosure of that use is covered in their company policy. However, the specific wording you use in your policy could be very important. A policy that requires your workers declare all prescribed and non-prescribed medications may not be enough to cover medical marijuana because a ‘medication’ by definition has a government assigned Drug Identification Number (DIN). The DIN means it has been endorsed by Health Canada and medicinal marijuana has not received such an endorsement. Further, in the new regulations, the language used by Health Canada refers to medical marijuana as being “authorized,” not “prescribed.” It is possible then that if the language in your policy does not cover medical marijuana more specifically, a worker with authorization to use it as a therapeutic product could argue that they are not obliged to disclose their use.

Self-declaration is an important part of your policy. The worker should be required to advise the company if and when they are initially authorized to use medical marijuana, and if and when an increase in the dose of the drug is authorized, used, or necessary.

When to authorize marijuana as a ‘medicine’

In its guidance document, the College lists the health conditions it believes are acceptable and not acceptable to qualify someone for medical marijuana use. For example, the College recommends dried cannabis only be considered for patients with neuropathic pain for whom standard treatments have failed. The College also says medical marijuana is not appropriate for patients under the age of 25 because this group is at a greater risk for “illicit drug use, cannabis use disorder, and long-term cognitive impairment.” The College only looked at pain and chronic pain, particularly neuropathic pain, and anxiety.

Patients with other medical conditions not referred to by the College have been identified by other sources as potentially benefiting from use of marijuana. There is currently no official proclamation available around which diagnoses would absolutely be an indication for its use.

Monitoring the worker to ensure proper use

The College’s guidance document recommends that patients authorized to use marijuana for medical reasons be “monitored carefully and assessed routinely for a cannabis use disorder.” From a safety perspective, regular follow-up assessments would not only be valuable in helping determine if the patient is complying with the doctor’s directions around dosage and frequency and is indeed benefiting from the treatment, but would also help identify any significant side effects that could change the worker’s health status enough to disqualify them from performing safety sensitive duties.

The major issue with this recommendation is that beyond the authorizing health care professional who may not fully understand issues impacting your workplace, there is no declared monitor for the program acting on your behalf to ensure that follow-up assessments are completed. It would be prudent for you as an employer to understand the schedule the patient would have to follow and to request a note or report from the attending health care professional. This note should state that indeed the patient is compliant, is benefiting from treatment, and is not experiencing any significant side effects that could impede their ability to perform their safety sensitive duties. You could build this into your policy as a fitness for duty requirement.

Specific consent from the worker may be required for the release of information to the employer. We also recommend that you seek legal advice on all matters relating to the above, including what consequences could be imposed if a worker does not comply with these policy requirements.

Urine drug screen as part of the assessment

The College suggests a “urine drug screen may also be included in the initial assessment” and “periodic drug screens are advised” as part of the recommended monitoring program to help determine compliance with their authorized use of medical marijuana. This could be beneficial for two reasons:

  1. In time we will develop a better understanding of where the therapeutic ranges for medicinal marijuana should be (versus the levels for non-therapeutic uses of marijuana) and could therefore more effectively use the drug screen to determine if the worker is treatment compliant or misusing or abusing their authorization. A drug screen might help identify if the worker has increased their dose without authorization or if they are supplementing the authorized marijuana with the street market drug.
  2. If the urine drug screen comes back negative, it could be an indication that the worker is not using the medication as authorized.

Mitigating the safety risks

Under strategies to prevent harm, the College recommends doctors advise patients authorized to use medical marijuana not to drive for at least:

  1. a) Four hours after inhalation
  2. b) Six hours after oral ingestion
  3. c) Eight hours after inhalation or oral ingestion if the patient experiences euphoria

The College also notes that Health Canada says impairment can last up to 24 hours.

You should also consider how your workers authorized to use medical marijuana get to and from work, not just their state while they are at work. Make sure you have conducted proper due diligence. Similar to hosting events where alcohol is served, you as an employer could be inherently liable if you allow someone to leave work at the end of the day without acting responsibly.

Clearly, the standards and recommendations on what constitutes impairment by marijuana are evolving as would be expected in any arena where pioneering is occurring. In light of this fact, you may need to arrange (for legal purposes) independent medical evaluations of workers to determine if they are fit and safe to perform essential safety sensitive duties. Recognizing this need, DriverCheck has developed a Medicinal Marijuana @ Work program for employers who want to take that additional step to ensure health and safety and minimize legal risk.