As many employers already know, smoking in the workplace is prohibited in Ontario. However, with the topic of medical marijuana increasingly in the news, a question that comes to mind is: “Does this prohibition apply to the smoking of medical marijuana in the workplace?”

Section 9 of the Smoke–Free Ontario Act  states:

No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace.

That legislation specifically applies to the smoking of tobacco, and does not make reference to the smoking of any other substance.

Although medical marijuana is a controlled substance under the Marihuana Medical Access Regulation(MMAR) pursuant to the Controlled Drugs and Substances Act, and its use has been legalized for medical purposes since 2001, the legislation and its regulations do not provide an answer to our question about smoking it in the workplace. That answer is also nowhere to be found in a new regulation, Marihuana for Medical Purposes Regulation, which amends the above-noted legislation.

What, then, is an employer to do when an employee has a medical marijuana license and states that s/he must smoke their marijuana in the workplace?   What if the employee holds a safety sensitive position (like driving a forklift)?

Fundamentally, these questions invite the same analysis as an employee’s request to use and/or be under the influence of any prescription drug with intoxicating effects. Accordingly, the answers are dictated by the employer’s obligations under both the Ontario Human Rights Code and the Ontario Occupational Health and Safety Act.

The Human Rights Code

Section 5.(1) of the Code provides the following protection for employees with disabilities:

Every person has a right to equal treatment with respect to employment without discrimination because of. . .disability.

Furthermore, the Code imposes a duty on employers to accommodate their employees’ disabilities to the point of “undue hardship”.

Because medical marijuana is used to treat a variety of illnesses that would meet the definition of “disability” under the Code, the prospect of its use at the workplace engages the issue of accommodation.

If an employer can establish that the accommodation of an individual’s disability would impose an undue hardship on the employer, then the employer is not required to accommodate. Three factors to be considered in determining whether the threshold of undue hardship has been met are: cost, health and safety, and outside sources of funding.

Looking first at the “smoking” element of self-administering medical marijuana (i.e. in other words, considering the health and safety risks that are analogous to the risks associated with smoking tobacco in the workplace), a 2007 Canadian study[1] on the toxic output of marijuana smoke indicated that some toxins may be more abundant in marijuana cigarettes than tobacco cigarettes.  As a result, one could argue that the second-hand smoke generated by smoking marijuana in the workplace poses a health and safety risk to employees.  However, in order to establish that that risk presents undue hardship, our view is that an employer would need to be able to demonstrate that the employee seeking accommodation cannot be isolated from other employees while s/he is smoking, that s/he cannot be provided with more frequent and/or longer breaks to facilitate that, and that s/he cannot otherwise be accommodated without causing undue hardship to the employer.  At present, we are not aware of any case in which an employer has successfully established “undue hardship” on the basis of the toxicity of second-hand marijuana smoke.

The Occupational Health and Safety Act

Regardless of whether medical marijuana is smoked or ingested by other means, the intoxicating effect of marijuana presents legitimate health and safety concerns for employers, who are subject to myriad duties under the Act, including the general requirement to “take every precaution reasonable in the circumstances for the protection of a worker.”

As with any other prescription medication and potentially intoxicating substance:

• employees do not have a “right” to be impaired in the workplace, and
• employees do not have a “right” to endanger their own safety or the safety of their co-workers.

Accordingly, in any case of an employee seeking accommodation that would involve him/ her being under the influence of and/or using medical marijuana in any dosage at the workplace, the employer should be requesting that s/he provide medical documentation that speaks directly to his/ her ability to safely and effectively do his/her job.

If the results of that enquiry disclose a meaningful impairment of the cognition, judgment, perception, coordination or other ability that is central to the employee performing his/her job safely and effectively, then the accommodation request described above should be denied.  That is particularly true in the case of safety-sensitive positions, where the threshold of what constitutes “meaningful” impairment will naturally be lower.

That said, denying an employee’s request to use and/or be under the influence of medical marijuana at the workplace does not preclude the obligation to consider other forms of accommodation—for example, alternative accommodation might include providing a leave of absence while the employee undergoes treatment/ rehabilitation, or providing a modified work schedule that allows sufficient time between the employee’s scheduled marijuana dosages and his/her working hours.

Conclusions

In every case, the employer must approach the accommodation exercise on a “due diligence” basis, with a view to assessing the undue hardship threshold and evaluating the full range of options for addressing the employee’s disability-related needs.

We anticipate that employers will be faced with increased requests for accommodation related to medical marijuana use, given that the new Marihuana for Medical Purposes Regulation aims to treat marijuana as much as possible like the narcotic drugs that have more historically been used for medical purposes.  In that regard, the Regulation removes the need for individuals to provide personal medical information to Health Canada, and instead permits health care practitioners to sign a medical document enabling patients to purchase the appropriate amount of medical marijuana directly from a Licensed Producer.

What should employers do to prepare for accommodation requests related to medical marijuana?

We recommend that proactive steps include the following:

• Employers should ensure that their drug use policies are written broadly enough to deal with medical marijuana, and precisely enough to define terms such as “impairment”, “intoxication” and “under the influence”.
• While zero tolerance policies are not advisable (and have been deemed unenforceable in many instances), policies should nonetheless set the boundaries of what will be considered acceptable use of prescription medication (including marijuana) in the workplace, and the protocol for employees reporting the use of (and/or being under the influence of) such medication during working hours.
• Employers should consult and cooperate with their Joint Health and Safety Committees in the drafting and implementation of such policies.
• Employers should also ensure that their policies address the disciplinary consequences of policy breaches, including for example, the sharing and/or selling of medical marijuana (or any prescription medication or illicit drug) in the workplace.