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Duty to accommodate or just blowing smoke?

The prescribed use of medical marijuana is on the rise and likely coming soon to a workplace near you.

This presents a challenge for safety professionals and their human resources colleagues in numerous industries, in both safety sensitive and non-safety sensitive work environments. While the debate continues as to whether or not marijuana is effective in treating serious illnesses (like terminal cancer, epilepsy and post-traumatic stress disorder), the practical reality is marijuana is an impairment causing substance that employers should proactively address.

In the United States, 20 states have legalized the medical use of marijuana. As of Jan. 1, 2014, Colorado has legalized recreational use, which has resulted in three times more marijuana dispensaries in Denver than there are Starbucks and McDonald’s combined, according to CBS news. It has created the reality of “pot tourism” and your workers could be partaking.

The legalization and ready access in the U.S. will likely increase worker access and use in Canadian workplaces due to both political pressure to decriminalize it for recreational use and the existence of safer, more accessible supply chains in the U.S. 

The law in Canada

In Canada, recreational marijuana use remains illegal, for now. The effort to legalize medical marijuana began in earnest in the mid-to-late 1990s, when advocates began clamoring for a legal exemption to the criminal law that would allow the sick or dying the right to obtain medical marijuana for pain relief. In July of 2000, amidst numerous cases before the courts, the Ontario Court of Appeal released the landmark decision of R. v. Parker.

The case struck down the prohibition against the possession of marijuana on constitutional grounds and hinted at the possible existence of a medical exemption that protected the patients’ right to access medical marijuana. In response, the Canadian government introduced the Marijuana Medical Access Regulation (MMAR), making Canada only the second country in the world with a government-run marijuana health program.

The MMAR came into force in July 2001 and allowed for the possession and personal use production of marijuana by people who, with their doctors, could show a legitimate medical need. The Canadian government has since introduced the Marijuana for Medical Purposes Regulation (MMPR), which is operating in concert with the MMAR until March 31, 2014. At that time, the MMAR and all licenses issued under it will expire. The new program will allow patients to access medical marijuana directly through their doctors, who will be able to issue a medical declaration that will allow the patient to place an order for dried marijuana from a licensed producer.

As of April 1, 2014, Health Canada will no longer produce or sell marijuana for medical purposes. Similarly, permit holders who were permitted to grow medical marijuana for personal use at home, or who have designated others to grow it for them, will no longer be able to do so. Instead they must get medical marijuana from a licensed producer.

The number of Canadians authorized to possess medical marijuana has grown exponentially in the last 10 years. In 2003, 605 Canadians were authorized to possess medical marijuana. That number grew to 4,793 in 2009. By the end of 2012, there were 28,115 authorizations granted. Based on the latest statistics from Health Canada, the number of Canadians authorized to possess medical marijuana is 37,359 and is expected to grow to 450,000 in the next 10 years. 

‘Designer’ marijuana

In short, there is likely to be a lot more easily accessible marijuana — medically prescribed or otherwise. Synthetic marijuana is already available. Marijuana will also likely be available in pill form and as a food ingredient. There is a strong push right now from small entrepreneurs and big pharmaceutical companies alike to come up with “designer” marijuana strains that treat specific symptoms and do not have the related cognitive and motor skill impairment commonly associated with the drug.

The Canadian Medical Protective Association (CMPA) recognizes prescribing marijuana will be difficult for doctors. There is relatively little scientific study of the drug given its long history of being illegal. Additional training is required for doctors so that they better understand dosage, side effects and can make effective recommendations for accommodation.  

Do’s and don’ts for employers

• Do have a drug and alcohol policy that addresses workplace impairment from prescription, over the counter and illegal drugs.

• Do ensure the policy is effectively implemented, training is provided to workers and supervisors, and the  consequences for failing to comply with the policy are understood.

• Do accommodate an employee where there is a legitimate underlying disability. This could include an independent medical exam, leave of absence or temporary reassignment.

• Don’t wait for an employee to come to you. Check with your benefits provider to see if the cost will be covered, be aware of your disability benefits limits and coverage, and know what other resources you can offer.

• Do work with the employee, his union representative and medical professionals to determine what checks and balances will need to be in place to ensure the employee, co-workers, the public and the environment are properly safeguarded.

• Don’t get distracted by the source of the impairment, but focus on the issue of impairment. Treat this source the same as you would any other prescription drug.

Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and is a senior partner in Mathews Dinsdale & Clark LLP's OHS and workers' compensation practice. She has close to 30 years of experience in providing strategic, focused, practical advice and in-house training for public and private sector organizations. Cheryl also has extensive experience representing clients at trials, complaints, inquests and appeals.

This article was co-authored by Loretta Bouwmeester. Special thanks to Wilson Chan, articling student, for his assistance.

 

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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