Employers should push back on vague doctor’s notes for the drug
Asha Rampersad is getting “a lot of panicked calls” from employers around the July 1 deadline for marijuana legalization. There are many misconceptions and employers may be forgetting that while recreational marijuana will be legalized in July, medical marijuana has been legal for many, many years, Rampersad told members of the CEO Health + Safety Leadership Network at an event on Oct. 24 in Toronto.
“There’s a lot of confusion I see there and I don’t see a lot of people making that distinction,” said Rampersad, who is a lawyer and HR advisor at Bernardi HR Law in Toronto. “There has always been a duty to accommodate people that have been taking medicinal marijuana from the early ‘90s onwards.”
Once recreational marijuana is legalized, it will still continue to be illegal to smoke it in public places, including parks, workplaces and motorized vehicles.
“It doesn’t mean it’s going to be a free for all and employees can all of a sudden come into work and say ‘Here’s my joint. I can smoke this wherever I want to,’” said Rampersad. “You can still discipline employees in the normal course if people are presenting to work and smoking recreational marijuana.”
Employers might want to consider testing for drugs and alcohol in their workplaces, especially if their workplace is dangerous and there is a current problem with drugs and alcohol.
“You see a lot of people saying, ‘You have no right, employer, to subject me to random drug testing or tell me what to do when I’m outside my core working hours.’ But actually you do have that right if that level of impairment is impacting on that person’s ability,” said Rampersad.
A good model for this issue is the Toronto Transit Commission (TTC), whose drug and alcohol policy was upheld in April by the Ontario Superior Court of Justice. The policy clearly defines “impairment” and sets the cut-off level for cannabis at 10ng/ml. Oral fluids are used to test for drugs, as opposed to urine, which is seen as more invasive. If a person had a substance abuse issue, that is taken into account and does not trigger any discipline. And a third-party service provider is responsible for conducting the random testing.
The TTC’s policy not only applied to safety sensitive positions but also to the C-suite, senior executives and top management, which is not often seen but is something Rampersad’s clients are starting to consider.
“As CEOs you’re making big decisions, you have senior accountants in charge of millions of dollars — does that constitute safety sensitive work?” Rampersad said. “We are hearing more dialogue around ‘OK, what can we do to test people operating in professional positions? We are concerned about their cognitive and psychomotor functioning to do their job and whether that’s impairment.”
The true source of the confusion might be due to how readily available marijuana will be once it’s legalized. Already it has become much easier for individuals to access marijuana and claim it is for medical purposes.
“Right now, what we are seeing is a proliferation of walk in doctors, so anyone can go into a walk in clinic and get these prescriptions,” said Rampersad.
There are also numerous dispensaries popping up and individuals can get a prescription right from the cannabis clinic or from Internet doctors, Rampersad said.
Previously, medical marijuana was very regulated. Individuals needed to go through Health Canada to get a license to smoke it and it was prescribed only for certain serious conditions, such as epilepsy, HIV and cancer. Now it is being prescribed quite frequently to treat anxiety, depression and insomnia, although the College of Family Physicians of Canada says marijuana is not an effective treatment for anxiety or insomnia.
Employers are expressing concerns and saying they don’t have enough information.
“This person has anxiety, so I need to accommodate them by allowing them to smoke a joint in the workplace. So then the issues arise: What is your duty to accommodate that? If they have a prescription, can they smoke that? What about second-hand smoke to other employees? Or the reputational risk if customers are seeing this?” said Rampersad.
If an employee comes to the employer with a vague medical note for the drug, employers should be pushing back and requesting more medical information, said Rampersad. They should ask when is the individual taking the medical marijuana (before, during or after her shift)?; What form is she taking it in (smoking, ingesting etc.) because that will impact the impairment? Is this permanent or temporary?
It’s also important to follow up.
“If you don’t have periodic check-ins, to say ‘OK, I am going to allow you to do this for X amount of time and then I’m going to require another medical document or a medical note,’ you’ve created an entitlement so you’ve got to manage that process as well.”
There are limitations the employer can implement around accommodating medical marijuana. For example, the employee can be required to smoke it only in a designated area, so other workers or clients are not exposed to second-hand smoke. Another example is requiring the employee to change his clothes before coming back into the workplace after smoking, Rampersad said.
Employers can also ask physicians if there are less intrusive measures the worker can be using to treat the condition. The College of Family Physicians of Canada recommends medical marijuana be prescribed as a last resort.
It’s also important to remember that zero tolerance policies are fine for recreational marijuana, but never for medical marijuana.
“It’s never OK for a person to come in and smoke a joint at work. It’s a totally different story when we’re talking about medical marijuana,” Rampersad said. “‘Disability’ is defined extremely broadly to cover substance abuse addictions and a range of conditions. You have a duty to accommodate an employee’s medical condition to the point of undue hardship and that’s an extremely difficult threshold, especially for large organizations, to meet.”
Amanda Silliker is the editor of Canadian Occupational Safety.