A quick Internet search on the topic of medicinal marijuana in the workplace produces a raft of catchy headings: “Vaporizing the stigma”, “A joint effort”, “Comfortably numb at work”, to mention but a few. As of 2013, over 37,000 Canadians held an “Authorization to Possess” under the now repealed Marihuana Medical Access Regulations, a regime put in place in 2001. These authorizations are granted to those with a medical prescription. The odds are that a majority of these legal users are employed. The fact that there have been no reports of significant increases in the incidence of accidents in the workplace or of a wave of white-collar pot-induced idleness is a good indication that the hype may not be justified. This is not surprising.

From a legal standpoint, medicinal marijuana does not require a re-design of the mostly logical rules of the workplace, such as:

  • Employees are required to show up fit for work;
  • Employees must avoid engaging in activities (at work and sometimes off work) that reflect badly on their employer;
  • Employees working in safety-sensitive positions must advise their employer if they are taking medication that may cause impairment; and,
  • Employers are required to accommodate employees suffering from disabilities.

In light of this, a mere tweaking of employer rules or policies would be sufficient to address the valid concerns of (reasonable) employers. If that is the case, what then is fuelling the hype? No doubt, one of the causes is that while marijuana is metamorphosing into medicine, it remains an extremely popular recreational drug. So much so that the Federal Government plans to (or is it just flirting with the idea?) legalize pot. Another is that the medical community does not universally endorse medical marijuana treatment.

There are other problems with medical cannabis (the September 2016 Federal Regulations now refer to cannabis as opposed to marijuana). First, what is it good for? While much of the information found on the net and elsewhere on this topic is anecdotal, sometimes reminiscent of Clark Stanley’s claims regarding his infamous Snake Oil Liniment, the fact is that a multitude of peer-reviewed studies have been undertaken and many more are underway to determine what ailments can safely and effectively be treated with cannabis and how cannabis and its various chemical compounds actually work. The following conditions are the more common applications of medicinal marijuana: seizures, nausea, ALS, symptoms of AIDS, side effects of chemotherapy, as well as PTSD. Less known perhaps is that marijuana is also sometimes prescribed for a host of less obvious conditions, such as: various phobias, cancerous tumours, fibromyalgia, PMS, and obesity (I know, I didn’t expect those last two either).

Other areas of concerns include dosage and strains. Various strains have different levels of THC (the psychoactive constituent of cannabis) and of its other compounds. This, coupled with the fact that it is legal for patients to grow their own or obtain it from regulated producers, makes dosage a challenge.

Cannabis can administered using a variety of methods, including liquid tinctures, vaporizing or smoking dried buds, eating cannabis edibles, taking capsules, using lozenges, dermal patches or oral/dermal sprays, or by using creams or balms. Some employers might be more comfortable – or less uncomfortable – with administration through any means other than smoking dried buds during the coffee break, but for some ailments, the mode of administration is a factor in the effectiveness of the treatment. This is an issue for the patient and her medical practitioner.

From an employment law point of view, marijuana is like any other medication. Employers must recognize that they have essentially no role to play in the treatment plan prescribed by an employee’s physician. They must ignore their own preconceived views on marijuana and respect the dictates of human rights legislation and other applicable legal principles. In short, they must chill…

For more information, please contact Joël Michaud.

#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice