Accommodate Employees Who Use Medical Marijuana?

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One of the hot topics discussed during the recent Canadian federal election was the possible legalization of marijuana. The Liberal Party, which won the election, took a position in favour of legalization as part of its platform. As the country waits to see whether the new government will put forward legislation to legalize marijuana, Canadian employers continue to navigate the complicated issues that arise in their workplaces when their employees have medical prescriptions permitting their use of marijuana.

By way of background, under human rights legislation in each Canadian jurisdiction, employers are required to accommodate the needs of employees with disabilities, up to the point of undue hardship. In some circumstances, employees receive medical prescriptions for marijuana to treat underlying disabilities. As a couple of recent arbitration cases illustrate, navigating the workplace implications associated with such prescriptions can be complicated for employers.

Medical Marijuana Use in a Safety-Sensitive Position

In Calgary (City) v. Canadian Union of Public Employees (CUPE 37) (PDF), a City of Calgary employee was employed as a heavy equipment operator – a safety-sensitive position. In 2009, the employee was prescribed marijuana for medical purposes. He informed two of his supervisors of his disability and that he had been issued a medical marijuana permit. For the next two years, he continued to operate heavy equipment without incident. In 2011, representatives of management became aware of the employee’s medical marijuana use. He was immediately removed from his position and placed in a non-safety sensitive position, pending investigation. After completing its investigation into the matter, the City of Calgary determined that the employee had a marijuana dependency that required treatment. He was provided with two options: 1) continue in a non-safety sensitive position; or 2) consult with a doctor for further assessment of his dependency. The employee’s union filed a grievance demanding that the employee be returned to his previous position.

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