May 5, 2016
[AYR, ON] – A key legal decision that came down recently could have safety implications for workplaces if the federal government doesn’t make changes to medical marijuana legislation in less than six months.
On February 24, BC Federal Court ruled that the existing Marihuana for Medical Purposes Regulations (MMPR) violate Section 7 of the Canadian Charter of Rights and Freedoms by not allowing patients to grow their own medical marijuana.
The court gave the federal government six months to re-write the rules or write new rules, or MMPR will be declared invalid, and, in effect, all patients will then be using illegal marijuana. In its decision, the court ignored the product quality, safety, security, and divergence arguments presented, meaning those problems could be transferred to the workplace once patients in large numbers start growing and using their own marijuana.
Some legal experts say it is possible that the government will re-write the regulations to include the right for individuals to grow their own medicine, and potentially, for other individuals under their personal care.
This legal decision and the potential outcome means workplaces more than ever need to start thinking about medical marijuana policies, testing, and independent medical evaluation programs to protect workplace safety.
Medical Marijuana @ Work
DriverCheck has partnered with Vector Medical Corporation to offer a solution that balances the duty to accommodate workers with a disability without putting the safety of your workforce at risk. This assessment program helps your company deal with medical marijuana use in the workplace. Through our partnership, your company has access to a nationwide network of medical cannabinoid experts, headed by Dr. Ilan Nachim, a leading Canadian medical marijuana and addiction medicine specialist.
Through the assessment program we work with you to customize workplace policies and procedures to address medical marijuana. As part of this process, we review all relevant policies, analyze safety sensitive roles, and lay out how your company will identify employees who have authorization to use the drug, how they will be evaluated, and the process for reintegrating them back into the workplace. Once in place, we educate and train your staff on the policy’s protocols. Then your company is ready to start evaluating workers on a case-by-case basis once they are flagged for evaluation.
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, the employer would 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.
Recommended “best practice” for medical marijuana test results
If a worker’s test result is non-negative, “best practice” would be for the Medical Review Officer (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 would result in a positive test.
If the MRO determines the individual has appropriate authorization and has taken the medication as authorized, this would result in a negative test with safety concerns (there would also be a notation that the concerns are due to the authorized use of medical marijuana). To determine if the worker is fit to perform safety sensitive duties, we would undergo an independent medical evaluation.
Independent medical evaluation determines fitness for safety sensitive duties
We provide your worker with an independent medical examination that is objective and based on medical evidence. Our assessments take into account the employee’s occupational history, safety considerations, medical history, and the 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 other options for treatment, given the employee’s medical condition
A safe return to work process for the worker, including any necessary follow up testing
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.
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About DriverCheck Inc.:
Since its inception in 1996, DriverCheck Inc. (DC) has been the leading provider of medical testing and assessments in Canada. Physician-owned and operated, DC has grown to become the largest national provider of workplace medical testing, and was one of the first Third Party Administrators in Canada to offer DOT-regulated alcohol and drug testing. DC’s head office is located in the village of Ayr, the heart of Ontario’s transportation hub. DC currently serves over 5,000 employers, with access to over 1,000 testing facilities strategically located across the country, providing easy access to all medical services. As a ‘fitness for duty’ company, DC’s top priority is to provide safety to your organization, staff and workplace. To learn more about DriverCheck, visit www.DriverCheck.ca or call 1 (800) 463-4310.