Employment & Labour

Medical cannabis use at work – know the facts

By Dave Gordon, AdvocateDaily.com Contributor

When it comes to the use of medicinal cannabis at work, there’s still a great deal of misinformation concerning employee rights and employer obligations, says Toronto employment lawyer Amelia Phillips.

To start with, an employer is not legally permitted to know if their workers are using medical marijuana unless it directly affects the workplace, says Phillips, associate with MacDonald & Associates.

“Not only is there no requirement to disclose use of medicinal cannabis, but if someone is automatically punished for non-disclosure, that could be discrimination on the part of the employer,” she tells AdvocateDaily.com. This is spelled out in the Ontario Human Rights Code’s policy statement on cannabis.

There are exceptions to the general right to privacy, such as safety-sensitive workplaces, says Phillips, who frequently advises clients on issues involving the use of medicinal cannabis in the workplace.

The Occupational Health and Safety Act requires that in safety-sensitive industries — such as where an employee needs to drive a vehicle for work purposes — the worker needs to disclose the existence of any hazards, she says.

Moreover, under the provincial Human Rights Code, employers have a legal duty to make disability-related accommodations for employees, Phillips says. For example, she says they may need longer break times than their co-workers, and they may need to provide official medical information to support their need for accommodation.

But the employer only has “the right to ask, and know, about the things that are essential to accommodation needs,” but that does not usually include the cause of the disability, diagnosis, or symptoms, Phillips says.

“Employers are allowed to ask for regular updates, and, if the ailment requires the worker to take time off, they must inform the company of their expected return,” she says.

Phillips says medical cannabis users "should be accommodated up to the point of undue hardship to the employer such as significant health and safety risks or significant costs that can’t be borne by the employer without, for example, jeopardizing the very business they are running.”

In addition, she says employers cannot submit employees to a random drug test “because of the potential to infringe on that person’s privacy.”

“It is permitted only in rare instances where there is a safety-sensitive work environment and evidence of a problem with drug abuse in that workplace," she says.

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