Medical Marijuana Use in a Safety Sensitive Workplace: Can an Employer Deny an Employee Use?

| March 13th, 2017 | No Comments »

Medical marijuana may be prescribed for several medical reasons. Under human rights law in Ontario, workers have a right not to be discriminated against on the grounds of ‘disability’ which encompasses illness. The use of medicinal marijuana in the workplace must be treated the same as any other prescription drug that a worker uses for a medical condition. In order to use medicinal marijuana in the workplace, the employee must provide medical documentation stating the nature of the disability (reason for use), and whether he/she is able to safely work while using medicinal marijuana while requesting accommodation.

Under human rights law, employers must accommodate an employee with a disability up to the point of ‘undue hardship’. In safety sensitive workplaces, accommodation may present increased challenges for employers. Under occupational health and safety law, workers cannot be a threat to their own safety or the safety of others within the workplace. An employer must, therefore, balance the duty to accommodate and the need to maintain a safe working environment.

There is no blanket standard that can be applied with regards to accommodation of medicinal marijuana use in safety sensitive workplaces. Each case must be examined in relation to the worker’s needs, the work duties and organization of work, and other factors that may have an effect on accommodation. For instance, the interconnectedness of work roles on an assembly line may present greater difficulties in terms of granting a worker the time needed to take prescribed usage of marijuana. If usage requires inhalation, then the worker must be relieved by another available worker that can perform the same role. This is because inhalation must be done in a designated smoking area. Accommodation efforts in this hypothetical may raise question such as: can other workers that can perform the same role be made available at all times? Can the marijuana be taken by ingestion with food while on the assembly line? Does being under the influence raise a health and safety concern? Can this worker be retrained for other similar roles that would alleviate potential health and safety and/or accommodation issues? With regards to the worker’s ability to perform the job duties without any concern for health and safety while under the influence, the worker’s physician must provide documentation showing that there are no issues.

The above was only one of many different scenarios that may arise. Employers are advised to have sufficient workplace policies with regards to prescription medication and workplace safety. This includes having procedures for reporting the use of medicinal marijuana and requesting accommodation, proper procedures for using medicinal marijuana when needed, and defining what is considered impairment with regards to health and safety matters. This is by no means a comprehensive guide. The consultation of an employment law expert should be sought so that unnecessary and costly future litigation is avoided for failing to accommodate up to ‘undue hardship’.

Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »

Question:

I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 

Answer:

You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.

An Employer May Not Be Able to Accommodate Individuals with Disabilities

| November 25th, 2013 | No Comments »

An Employer’s Obligation to Accommodate Individuals with Disabilities

It is important to accommodate individuals with disabilities, but an employer’s obligation to accommodate cannot extend to what they do not know or what they cannot be reasonably expected to know.

An employee who alleges workplace discrimination on the basis of a disability, must have provided the employer with sufficient information about his or her disability to be successful in this claim. Such was the case in a recent proceeding at the Ontario Human Rights Tribunal (2013 HRTO 1635 (CanLII)).

Terminated on the Basis of a Disability

Heather Stewart, a project manager with the Ontario government, amongst other claims, alleged she was terminated in a manner contrary to the Ontario Human Rights Code because she was terminated on the basis of her disability.

Ms. Stewart admitted she had not revealed her disability to the employer, but claimed that her employer ought to have known about her disability and accommodated her accordingly. She claimed that her poor work performance was a result of a failure to accommodate.

The Tribunal rejected this argument. The Tribunal noted that an employer does not have an obligation under the Code to offer underperforming employees accommodation in the absence of a known or ought to be known disability. And that without clearer information, it was reasonable for the employer to have concluded that the poor performance was skill related and terminated based on this.

An Employer May Not be Able to Accommodate

The decision speaks to the shared responsibility of both employee and employer in managing requests for workplace accommodation. An employer may not be able to accommodate if an employee does not reveal their disability to them.

All situations are different, and the above is not to be taken in whole or in part as legal advice. For any questions about your particular situation, feel free to contact the lawyers at Whitten & Lublin.