Understanding medical marijuana in the workplace

Employers need to educate themselves on impairment and liability issues  

As recreational marijuana fast approaches legal status in Canada, the landscape for medical marijuana—which has been lawful since 2001—looks to morph once again.

Drew Demerse, a partner at Vancouver-based law firm Roper Greyell, said the first issue that comes to mind is how people will obtain pot post-legalization next spring. Demerse, who advises employers on workplace legal matters such as labour, disabilities and human rights, said there should be a substantial drop in medical marijuana prescriptions from doctors to start, simply because obtaining it legally will be much easier.

“The types of things that I see people getting prescribed medical marijuana for right now vary widely,” said Demerse. “For example, I had a client who had an employee who had been prescribed marijuana to treat insomnia, but the medical experts tell me marijuana is not an appropriate treatment for insomnia.”

Demerse said first off, employers who think they may have issues with medical marijuana in the workplace should consult a lawyer, and look into updating workplace policies around drug use immediately. According to Health Canada, marijuana is the most commonly used illicit substance in Canada and the second most used recreational drug in Canada after alcohol. Currently, more than 50,000 Canadians use medical marijuana, with Health Canada estimating that by 2024 more than 500,000 Canadians will be users. Demerse, who was first called to the bar in 2006 in British Columbia after graduating from Dalhousie Law School, said that human rights legislation requires employers to accommodate employees’ disabilities. If marijuana is a necessary treatment for that disability, Demerse said the employee’s right to medicate with marijuana must be respected, to a specific extent.

“If you’re able to separate it from your workplace, you don’t present a safety risk, and your work doesn’t suffer from it,” he added, “then the employer has no business regulating it. The issue is really about accommodating necessary—and I emphasize the word necessary—treatments for those disabilities. So a prescription for medical marijuana does not entitle the employee to be impaired at work or compromise his or her safety, or the safety of others.”

Both recreational and medical marijuana are presenting a unique challenge for the legal system. The potency of pot can vary widely, as can its effect on users. The effects of smoking marijuana can last anywhere from two to twenty-four or more hours, and there are no current testing methods that can prove current impairment on the spot. THC (Tetrahydrocannabinol), the psychoactive element within cannabis, is fat-soluble and can be released days after consumption during exercise.

Tom Yearwood, the owner of the Surrey-based Denning Health Group, has been involved in drug and alcohol testing for more than 20 years in B.C. and across the country. Denning’s clients include some of the province’s leading forestry companies, and Yearwood said the legal status of recreational marijuana doesn’t change anything regarding impairment or liability issues within the workplace.

“There is quite a bit of discussion and confusion when it comes to testing for marijuana,” he added. “And while there is a push on at the federal level to establish a per se limit, meaning a specific cut-off level at which impairment is presumed, this is not the case at present, and a positive drug test does not necessarily correlate to impairment.”

Yearwood said there are four ways to test for marijuana—urine, blood, hair or saliva. He added the most commonly used form right now for employers is the urine test. However, it’s important to remember that marijuana is not alcohol, and can stay in the body for weeks.

“This is one of the reasons that a positive drug test for marijuana, or other drugs, cannot be considered as a standalone indication of impairment,” he added.

 Demerse said it all comes down to one thing for both employees and employers.

“Just as an employer can say, ‘You can’t drink and come to work, you need to be sober.’ They can also say, ‘You can’t do any drug, legal or illegal, and come into the workplace if it’s going to do one of two things, cause a safety risk or lessen your productivity.’”