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Issues around authorized medical marijuana use in the workplace are headed to the judicial arena in Canada

After being in the media spotlight for months, the question of whether medical marijuana use should be permitted in the workplace will be dealt with by the courts, human rights commissions, and/or arbitrators. DriverCheck has received word that authorized medical marijuana users are starting to file human rights complaints against employers with automatic dismissal policies.

There is no hard or fast rule on how to treat medical marijuana use in Canadian workplaces not regulated by the U.S. DOT. Some non-regulated employers not wanting to accept any potential risk to safety are opting to follow the DOT’s zero-tolerance approach to the use of this drug. However, as evidenced by recent human rights complaints, this decision could expose you to costly challenges.
We recommend employers take a less narrow approach to this issue and we will explain why in this post.

Zero Tolerance is a Risky Approach

DOT does not allow authorized medical marijuana use as a valid explanation for a positive drug test result under any circumstances, but adopting this approach in non-DOT regulated circumstances does not take into account the variances between the U.S. and Canada.

Unlike the U.S., where New York just became the 23rd state (in addition to Washington, D.C.) to permit the authorized use of medical marijuana yet the federal government (including DOT) does not, the provincial and federal governments in Canada appear to be aligned in the treatment of these cases. Health Canada permits the drug’s 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.

The same holds true south of the border. In fact, four U.S. states (Minnesota, Arizona, Connecticut, and Delaware) have now introduced job protection legislation for workers authorized to use medical marijuana. However, attention is being paid to workplace risk as evidenced in Minnesota’s law that requires patients/workers not use, possess, or be impaired by cannabis while at work and while on the premises, even if they are not working.

As many employers are already aware, Canada’s new federal regulations are expected to result in increased authorizations for medical marijuana use. This makes it a significant issue for workplaces, especially those with employees working in safety sensitive positions.

We believe at this time it is risky for employers to have policies that require MROs to automatically verify test results as positive without the employer’s reviewing each worker’s circumstances, job description, physical demands and safety impact on a case by case basis. Our recommendation is for employers to treat each case uniquely.

Our Recommended “Best Practice”

Our recommended procedure or “best practice” for medical marijuana use at this time is for the MRO to determine if appropriate authorization of the drug’s use was obtained, and whether the individual was taking it as authorized. If upon review the MRO determines the individual does not have appropriate authorization or has not taken the medical marijuana as authorized, this will result in a Positive test.

If the MRO determines the individual has appropriate authorization and has taken the medication as authorized, this will result in a Negative Test with Safety Concerns (there will also be a notation that the concerns are due to the authorized use of medical marijuana).

A Positive Test MRO determination indicates illicit use of a drug.

A Negative Test MRO determination with Safety Concerns indicates authorized use, but that there should be additional considerations before allowing the individual to perform safety sensitive duties. For individuals who do operate in safety sensitive positions, an Independent Medical Evaluation is highly recommended. This assessment would be best completed by a physician with expertise in the field of occupational medicine, addictions medicine and/or medical marijuana. These experts can assist with evaluating whether the worker authorized to use medical marijuana can perform their job safely. Physical Abilities Testing would also be valuable to the evaluation process.

If an evaluation determines the employee is medically fit to perform safety sensitive duties, it is recommended that follow-up assessments be carried out from time to time to ensure safety is maintained, and that the employee be advised to immediately stop work and report any change in dose or frequency of use, or any side effects of any kind should they develop or occur over time that could impact safety. Re-evaluation of medical fitness should be performed in such circumstances.

If an evaluation determines that the employee is not medically fit to perform safety sensitive duties, then the employee should be removed from such duties until such time as it can be determined he/she does become medically fit (either through the employee’s discontinuance of use of medical marijuana, or through the employee’s demonstrating the development of tolerance to the medication to the point where side effects are no longer an issue, while therapeutic benefit has still been obtained).
Again, non-DOT regulated employers have two policy options to choose from for their drug testing programs, which are: 1) Case by case review as recommended above; or, 2) DOT’s zero-tolerance automatic positive test outcome.

Policy Options

Each employer must decide what its policy option will be, and be prepared to defend its policy in the event of a legal challenge. We recommend that the decision be made with input from a health and safety perspective, from a legal perspective, and from a human resources perspective.
Once an employer has decided on its policy, all that is needed is for the employer to let DriverCheck know what it would like us to do on its behalf regarding the MRO review outcomes to be reported regarding medical marijuana test results.

Notwithstanding any of the above, rules, regulations, and standards change from time to time, and such changes could require employers, workers, MROs, TPAs, and other stakeholders to change their approaches to this matter and adhere to such changes as required.

Stay tuned.

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