As highlighted in the media last week, medical marijuana continues to grow as a chosen treatment option for a host of medical conditions and this means employers could find themselves dealing with a tough issue.
Health Canada recently began allowing licensed medical marijuana producers to produce and sell cannabis oil, as well as fresh buds and leaves; a decision that followed a Supreme Court ruling allowing patients to use pot derivatives. The rationale is that ingestion is a better alternative than smoking. Medical marijuana in edible form has not yet been approved for use.
If a political change at the federal level in this month’s election resulted in the decriminalization (or even full legalization) of marijuana, the use of marijuana in the workplace would be treated much like alcohol. The heaviest emphasis in workplace policies would have to be on the safety perspective and the same issues and policy making attached to the use of alcohol would have to be applied to marijuana.
If decriminalized or legalized, medical marijuana would still be a reality and a benefit program may cover the cost, and in that context the drug would be treated like any other medicinal product that could cause impairment on the job. If an employee is using medical marijuana, they should report that use to their employer. An independent medical evaluation is a useful tool to ensure it is safe for that individual to do certain functions at work, and if not, it will help determine how the employee can be accommodated.
Testing technology to determine the likelihood of impairment is far more advanced for alcohol than for marijuana. Breath technology can identify quantitative levels of alcohol circulating in the blood and there are already legally recognized quantitative levels relating to the level of impairment recognized in the judicial system. There is no such testing available for marijuana. Although oral fluid testing can indicate a likelihood of impairment during certain time windows, this test type is not as precise as breath alcohol testing is to determine blood alcohol levels.
We recommend companies have a policy around medical marijuana in place, as marijuana is still an illicit drug unless medically authorized by a doctor or nurse practitioner, and purchased from a Health Canada authorized Licensed Producer (LP). Employees using medical marijuana should be monitored closely by their employer, and as part of this process, employers should consider an independent medical evaluation (IME) be carried out by experts in the field to determine if someone is qualified to perform safety sensitive duties, or not. Urine and/or oral fluid testing should be part of the process even though it does not precisely identify impairment at the time of the test.
Testing does have value in determining if someone is consistently using their medical marijuana. If the test result shows a sudden increase in levels beyond what you would expect from that authorized use, the individual may have either changed their dosage and/or frequency of use, or may be supplementing their medical marijuana use with a street product. A sudden decrease in levels could indeed be consistent with decreased use, but certain other factors combined with decreasing levels could suggest diversion.
One of the recommendations from the College of Physicians and Surgeons of Canada is that patients be monitored by their physician on a regular basis, no longer than once every 3 months to determine if the medical marijuana is therapeutic, and to make certain significant side effects, if they occur, are not problematic. If not therapeutic, or if it causes significant negative impact on day to day functioning, the dosage and frequency should be adjusted downwards, or the formulation of the product should be changed to one containing less THC, or its use should be discontinued altogether. Employers should monitor this process to make sure these regular doctor’s appointments are made and attended and that it continues to be safe for the individual to perform safety sensitive duties if cleared to perform such work by a qualified medical expert.
The employer should also take into consideration whether the medical condition the employee suffers from that the medical marijuana was authorized for is under control to the point where the individual does not pose a safety risk. If it is not controlled, worker accommodation will be necessary based on the individual’s condition.