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How to Manage Workplace Safety Issues Around Medical Marijuana

Medical marijuana became more easily accessible in April when the rules around who can authorize the drug changed in Canada. Clinics specializing in writing medical marijuana prescriptions are going up in Toronto, and others are planned for Edmonton, Calgary, and Halifax. This has many employers trying to prepare themselves for the expected influx of authorized users and the workplace safety issues that will come with it. To help you with this, we have some suggestions on how to minimize the risks.

From an alcohol and drug testing perspective, users of medical marijuana will test positive at the laboratory (marijuana is marijuana, whether medical or illicit).

For non-regulated workplace testing programs, we intend to apply the same MRO review process to medical marijuana circumstances that we do for any prescribed medication, meaning the donor will have to provide proof of valid medical authorization for use to the MRO before the MRO can downgrade the laboratory positive test result to an MRO negative determination.

However, from a risk perspective, we intend to identify that the employer must address safety sensitive work issues relating to a worker’s use of medical marijuana, and we will likely suggest a fitness for duty medical examination be carried out. This is because medical marijuana, like illicit marijuana, can cause impairment and increase the risk of workplace injuries.

The assessment should take into consideration the dose and frequency of medical marijuana use, time of use in proximity or during working hours, the nature of the work involved, as well as any historical and clinical examination findings and/or results of any additional applicable tests in order to determine if the worker is or is not fit for safety-sensitive work.

Alternatively, the changes to how medical marijuana is authorized in Canada will have no bearing on any worker governed by the U.S. Department of Transportation regulations. That’s because the DOT regulations absolutely do not allow for medical marijuana to be used as a valid medical explanation for testing positive for marijuana at the laboratory.

As such, DOT-regulated workers will be determined by the MRO to have tested positive even if the worker is authorized to use medical marijuana.

Some non-regulated employers have indicated they would prefer to adopt the DOT model for maximum safety consideration. However, employers in this case should be aware that this could increase the likelihood of a challenge in court.

We strongly urge any non-regulated employer to seek out legal advice to ensure that the model chosen for its workplace testing program as it relates to medical marijuana is applicable, defensible, and free from real or perceived discrimination.  We suggest developing a written policy that specifically addresses medical marijuana.

Here at DriverCheck, the alcohol and drug policies we offer non-regulated workplace employers were updated in advance of the changes to Canada’s medical marijuana program. If you are a client of ours and would like to purchase an updated policy, please contact your sales consultant or give us a call at 1-800-463-4310.

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