Access to Cannabis for Medical Purposes Regulations (ACMPR), section 56 class exemptions, and the proposed Cannabis Act permit employees of persons who are authorized to possess, produce, sell, and distribute to do the same, but only while at work. And when hospital employees, health care practitioners, and approved testing facilities obtain an individual's legal cannabis, they, too, may legally possess it. These are important protections from potential prosecution as a result of performing their duties.
The Canadian Human Rights Act and its provincial and territorial equivalences oversee employer-employee relationships. The Act states it is a discriminatory practice to refuse to employ or continue to employ any disabled individual. Disabilities include dependence on cannabis and the medical diagnosis for which cannabis was prescribed.
Accordingly, patients should feel comfortable informing their employers about their medical cannabis prescription. However, many keep it private, as disclosure has not been required. Ironically, it was a Health Canada mass-mailing to everyone in the Marihuana Medical Access Program that outed many actively working patients and resulted in job losses.
Nevertheless, employees have the right to approach their employer or Human Resources personnel when requiring a location to medicate. The employer will question if medical cannabis will influence the ability to work and, if so, must provide a workplace accommodation. Employers, by law, must maintain a safe workplace and accommodate employees who are valid cannabis patients, unless it would create health and safety risks or be prohibitively expensive.
Unfortunately, in 2014, the RCMP and Corporal Ron Francis did not agree upon accommodation terms. Corporal Francis wanted permission to smoke medicinal cannabis for post traumatic stress disorder (PTSD) while in uniform and in public. He claimed that his regular duties triggered his PTSD, the consequences of which are often suicide and violence. The RCMP's position was that members under the influence of a mind-altering drug, such as marijuana, were not permitted to perform operational duties.
Corporal Francis lost his battle with RCMP brass and subsequently with PTSD, when he took his life. The RCMP eventually launched an enhanced Disability Management and Accommodation program to provide coordinated support for ill and injured members while they recover.
It is recommended that all employers update workplace policies and train staff before the Act is enforced. Also recommended is a review of perfume and scent policies. McMaster University has already banned smoking and vaping of cannabis on its property. Cannabis smoking and vaping will also become prohibited in federally regulated places and conveyances once the Cannabis Act is in force.
It's clear that medical cannabis patients will continue to encounter challenges in acquiring adequate workplace access for some time.
The Access to Cannabis for Medical Purposes Regulations
allows employees, while acting in the course of their employment, to possess cannabis for the purposes of and in connection with their employment. Job examples:
An Act to extend the laws in Canada that proscribe discrimination "The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered." Canadian Human Rights Act.
Alison McMahon, Cannabis At Work, explains that if an employee is using cannabis for medical purposes without a prescription, they will not have the Human Rights protection that is provided to valid patients.
Managing editor of Canadian Lawyer InHouse and Law Times, Jennifer Brown, discusses accommodation issues. For instance, in a situation where an employee indicates they require a change in their work environment to allow them to smoke cannabis during their work shift, the employer cannot automatically say no, even though there are laws prohibiting smoking in the workplace.
Stuart Rudner, founder of Rudner Law, suggests that employment accommodation, which could include modifying work schedule and duties, or a temporary leave of absence, would only be required for a valid medical patient if there is impairment.
Count down to July 2018. The Government of Canada, intending to bring the Cannabis Act into force no later than July 2018, has published many pages of information on the proposed regulations, with more to come. Discover the details. Part of the Cannabis Resource Library by The Cannabis Access Resource and Education Center.
Luc Deshaies, Partner, and Elisabeth Gauthier, Associate, Gowling WLG, advise that workplace cannabis use policies should be similar to ones in place for alcohol use. The existence of a condition justifying the prescribed medical use of cannabis, and a cannabis dependency, can both be considered disabilities. And if so, the employer must conduct an accommodation analysis which may include a last-chance agreement and the opportunity to undergo rehabilitation.
"In the case of Ontario Nurses Association v. Sunnybrook Health Sciences for example, a nurse who was dismissed for stealing from employer medicine stock was ultimately awarded reinstatement when she challenged her dismissal. The reason was because the employer, in dismissing her for cause, failed to account for her long term drug addiction which was ultimately the cause of her misconduct." --Richa Sandill.
Nova Scotia: "Each nurse is accountable to know the process by which clients are authorized to use medical cannabis, indications for use, routes of administration, adverse effects, dosing and contraindication. Nurses should be aware of any new research or evidence relating to medical cannabis and advocate for appropriate policies.
"All nurses should advocate for continued research to establish a base of evidence for practice related to medical cannabis. The registered nurses (RN) (including the RN manager or educator) is accountable to integrate research into practice. RNs and licensed practical nurses (LPN) are accountable to evolve their practice based on evidence." --College of Licensed Practical Nurses of Nova Scotia, College of Registered Nurses of Nova Scotia. [PDF 8p]
Dr. Melissa Snider-Adler explains that one of her roles as DriverCheck's Chief Medical Review Officer is to determine if there is a legitimate medical explanation for an employee's positive test and then alert the employer to safety risks.
On November 19, 2013, Health Canada mailed letters to 41,514 clients of the Marihuana Medical Access Program across Canada in windowed envelope containing the letter explicitly identified the Marihuana Medical Access Program in the return address on the outside along with the name and address of the client recipient. The Office of the Privacy Commissioner of Canada (OPC) received complaints concerning the mailing's impact on personal lives including loss of employment, reputational damage and personal safety. OPC concluded the complaints are well founded.
After discovering that Gregory Wilson was a legal medical cannabis user, Transparent Glazing fired Wilson over performance-related issues. The British Columbia Human Rights Tribunal found the termination inappropriate because the employer had an obligation to ask the individual whether the medication he was taking was affecting his ability to perform his job.
Colton M. Hnatiuk, TDSLaw, points out that the employer's drug and alcohol policies need to spell out how non-medical cannabis use will be addressed in the workplace. When there is reasonable cause to believe an employee is under the influence of cannabis, the policy could allow the employer to insist on that employee taking a drug test. An employee's refusal may then be properly viewed as a serious violation, but not necessarily as a justifiable reason for automatic termination.
Corporal Ron Francis made national headlines after he complained his workplace accommodation did not allow him to smoke medicinal cannabis for PTSD while in uniform and in public. During his memorial service, the family requested the Red Surge only be worn by Corporal Ron Francis and no other member of the RCMP.
Owen Edward Smith, employed as the Cannabis Buyers Club of Canada's baker, was charged with possession of cannabis and possession for the purpose of trafficking. He was held criminally liable because the company sold cannabis infused edible and topical products, along with flower.
Smith successfully argued that medical cannabis users should have the right to consume non-smokable products and was acquitted at trial.
The federal government challenged in the Supreme Court of Canada, contending there was not enough scientific evidence on the efficacy of derivative cannabis products, and argued that the Charter does not give medical marijuana users the right to obtain or produce drugs based on their subjective beliefs. The Supreme Court disagreed and went on to declare that patients could now possess non-dried forms of medical cannabis, such as edible and topical products.
An interview with Brian Greenspan, an employment lawyer with Hummingbird Lawyers LLP, who points out that upon the expected dramatic increase in registered medicinal users, many issues will arise for employers in regards to cannabis and the workplace.
"I had a call from a company the other day that said one of their employees was injured on the job, and as a matter of standard practice, they get drug-tested," Sandra Gogal recounted. "The results came back positive, and they said, ‘Can we fire him?’ And I just said, ‘We don’t know yet whether that was for medical purposes or not.’" --David Gambrill.
"The only mention of employees in Bill C-45 involves the provisions regarding general authorizations: employees of persons who are authorized under the Act to sell, distribute, or produce cannabis may do anything that is prohibited in the Act if they do so as a part of their employment duties and functions and in a manner that is consistent with the employers authorization." --Christina Catenacci.