Medical Marijuana and the Workplace: Human Rights Considerations for ONA Members

Transcription

1 Medical Marijuana and the Workplace: Human Rights Considerations for ONA Members Presented by: Pauline Lefebvre-Hinton, HRE/RTW Specialist Alyssa Lane, Legal Counsel October 2, 2018

2 Agenda 1. What is cannabis? 2. Legislative overview. 3. Duty to accommodate. 4. College of Nurses. 5. Employer policies on cannabis. 6. Medical marijuana: privacy & disclosure. 7. Drug plans and coverage of medical cannabis. 8. Advice to members/local leaders. 9. Resources, Q and A. 2

3 What is Cannabis? Cannabis includes: Any part of a cannabis plant. Any substance or mixture of substances that contains any part of such a plant; or Any substance that is identical to, produced by, or found in such a plant. (An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, SC 2018, c 16) Ways in which cannabis can be prepared for consumption: Marijuana (dried, crushed leaves and flower buds). Cannabis extracts (oils and waxes). 3

4 What is Cannabis? The two primary chemicals are THC and CBD THC is primarily responsible for the psychoactive effects or high associated with cannabis use. CBD does not cause psychoactive effects. The type and amount of these ingredients may vary depending on the cannabis strain. Can be taken in different ways: smoking, drinking or eating, vaporizing/vaping. 4

5 What is Cannabis? THC can increase appetite and reduce nausea, decrease pain, inflammation (swelling and redness), and muscle control problems. CBD is a cannabinoid that does not make people "high and may be useful in reducing pain/inflammation, controlling epileptic seizures, and treating mental illness/addictions. Side effects of these two chemicals combined include impact on cognitive function (ability to think and make decisions), decreased concentration, fast heartbeat, nausea, vomiting, dizziness, drowsiness. 5

6 Federal Legislation On October 17, 2018, Bill C-45, An Act respecting cannabis and to amend the Controlled Drug and Substances Act, the Criminal Code and Other Acts will take effect to control the production, distribution, sale and possession of cannabis in Canada. Adults will be able to legally purchase fresh or dried cannabis, cannabis oil, and seeds and plants for cultivation. Other products, such as edibles, will be available for legal sale within one year following the coming into force of Bill C-45. Bill C-45 Subject to provincial/territorial restrictions, adults who are 18 years of age or older (depending on the province or territory), will be able to legally: Possess up to 30 grams of dried cannabis for personal use. Share up to 30 grams of legal cannabis with other adults. Purchase cannabis from provinciallylicensed retailers. Grow up to four plants per residence. Make cannabis products at home. Until then, cannabis will remain illegal, except where authorized for medical or scientific purposes. 6

7 Federal Legalization The federal Access to Cannabis for Medical Purposes Regulations (2017) will continue to govern and regulate access to medical cannabis: Health-care providers can prescribe fresh or dried marijuana or cannabis oil. Nurse Practitioners are only permitted to prescribe dried marijuana. Possession limit for medical cannabis: lesser of a 30-day supply or 150 grams of dried marijuana or equivalent. If a health-care professional has already authorized an individual to use cannabis for medical reasons, their access will not change when recreational cannabis is legalized. 7

8 Provincial Legislation Cannabis Act, 2017 Ontario Cannabis Retail Corporation Act, 2017 Prohibits the sale of recreational cannabis to anyone under the age of 19. Prohibits the use of recreational cannabis in all public places, workplaces and motor vehicles. Prohibits youth (under 19) from possessing, cultivating, consuming and sharing any amount of recreational cannabis. Addresses illegal selling including storefront dispensaries. The Cannabis Act, 2017 will come into force at the same time as federal legalization. Established as a new Crown corporation, the Ontario Cannabis Retail Corporation (OCRC), operating as the Ontario Cannabis Store (OCS) has a subsidiary relationship to the Liquor Control Board of Ontario (LCBO). The OCRC will: o sell cannabis and related products through a network of dedicated storefronts and an online channel. o determine the types of cannabis products it sells and promote social responsibility with respect to cannabis. 8

9 Cannabis and the Workplace Despite the legalization of cannabis, employees should not use or possess cannabis in the workplace. Employees also need to consider cognitive impairments and other negative effects which could impact one s ability to practice safely at work. Cannabis use engages both regulatory standards and employer rules to not be impaired or under the influence at work. 9

10 Duty to Accommodate (DTA) Under Section 17 of the Human Rights Code, an employer s DTA to the point of undue hardship is triggered: Where an employee establishes that they have a need to use medical cannabis because of a disability; and Where an employee notifies the employer that they require an accommodation in the workplace based on this disability; or Where the employer knew or ought to have known that the employee has a disability requiring accommodation ( duty to inquire ). Involves an individualized, case-by-case analysis. 10

11 Duty to Accommodate Undue hardship includes consideration of health and safety of all employees and patients. Medical cannabis impacts individuals differently based on a wide variety of factors (strain, dose, form). Science is still evolving: No easily definable ratio between consumption and level of impairment. No available test to determine current level of impairment. Positive drug test only establishes previous use. The science and uncertainty of the impact of cannabis on users has resulted in inconsistent outcomes in arbitration decisions. 11

12 Duty to Accommodate Calgary (City) v. CUPE, Local 37 (2015): Employee in safety-sensitive position notified his supervisors of prescription for medical cannabis use for chronic pain and was subsequently removed to nonsafety sensitive position. Used in small amounts, only at home in the evenings. Held: Unjustifiably held out of safety-sensitive positions. Reinstated into former position provided that: reduces monthly prescription. subject to random substance testing. is available for a new medical review if the employer concerned about dependency. 12

13 Duty to Accommodate IBEW, Local 1620 v. LCTCEA Inc. (2018): Newfoundland Arbitrator held employer justified in refusing to place an employee in a safety-sensitive position due to his daily use of medical marijuana, for which he had a prescription. Although employer had a DTA the employee's marijuana use for chronic pain, evidence established that regular use of marijuana could cause residual impairment during work hours such that it was impossible for the employer to measure with current technology. Inability to measure and manage that risk of harm constitutes undue hardship for the employer (Page 65). 13

14 College of Nurses Approach to Member s Use of Medical Cannabis: Suspicious, not ready to treat it like any other medication. Facts that would support a favorable outcome by Fitness to Practice Committee: Longstanding, well-documented medical condition not responsive to other medications. Cannabis prescribed by an addiction/pain specialist. Used responsibly, never at work, never within 8 hrs of the shift. No evidence of performance concerns at work. 14

15 Employer Policies on Cannabis Two types of policies: 1) Policies governing the administration of medical cannabis to patients. When administering medication, members must adhere to their regulatory bodies practice standards and legislation (i.e. CNO Practice Standard Medication) Section 56 Class Exemption authorizes hospital employees (including nursing homes and long-term care facilities but not home-care) to directly administer medical cannabis to patients with authorization to use it. 2) Staff policies regarding drug and alcohol use including medical cannabis. 15

16 Employer Policies on Cannabis We are just beginning to see employers implementing staff policies on drug and alcohol use which specifically references cannabis. Employer policies will likely contain the following elements: Zero-tolerance policies on possession, use and impairment in the workplace o This directly impacts anyone who requires the use of a controlled drug or substance (including medical cannabis) while at work. Mandatory disclosure requirements o Policies requiring employees to notify their manager of any medication (including medical cannabis) that may impair their ability to perform their job safely. 16

17 Privacy and Disclosure Individual case-by-case analysis about whether employees need to share that they are using medical marijuana. Factors to consider: Need for accommodation. Medical evidence to support safe practice: dosage, frequency/timing of usage, and THC content (privacy & personal health information). Safety sensitive position. Fitness to practice (i.e CNO case): evidence of impairment/non-impairment. 17

18 Privacy and Disclosure Factors to consider (con t): Employer policy requiring disclosure (may be subject to challenge). Comparison to other psychoactive prescription medications (i.e. insulin, lithium). No legal obligation to report. o RHPA does not require a health-care professional to self-report medical cannabis or any other prescription drug use to an employer. o CNO does not impose an obligation to self-report. 18

19 Drug Plans and Coverage for Medical Cannabis Most plans do not currently cover medical cannabis because: It is not approved under the Food and Drugs Act. It does not have an assigned Drug Identification Number (DIN). Courts appear to be hesitant to use human rights legislation to dictate what benefit plans will and will not cover: Skinner (2018): Nova Scotia Court of Appeal overturned Human Rights Board decision that found denial of coverage of medical cannabis for chronic pain was discriminatory. This issue has not yet been decided in Ontario. 19

20 Advice to Members Employers duty to accommodate to the point of undue hardship must be balanced against health and safety considerations. Individuals who use medical cannabis have tended to be more successful at arbitration where: Taking low daily doses. Outside of the workplace. Outside of working hours and not immediately before work; and No work incidents or safety issues. No evidence of impairment at work. 20

21 Advice to Members Ensure you obtain medical documentation from a physician to substantiate the need for cannabis (i.e. prescription) and appropriate registration with Health Canada. Must be able to practice safely at work. If you are concerned that your cannabis use is affecting your ability to provide safe patient care, consider taking sick leave and return only when cleared to do so by a treating physician. No legal obligation to self-report cannabis use to your regulatory college. If you have questions regarding cannabis use, please contact ONA. 21

22 Advice to Local Leaders Contact your Servicing Labour Relations Officer if: A member uses medical cannabis because of a disability and approaches you regarding a need for accommodation. A member has questions about disclosing medical cannabis use to an employer. A member discloses to you that they have an addiction to cannabis or you suspect a member has an addiction. Your employer introduces staff policies regarding drug and alcohol use. 22

23 Visit our website: Online Resources ONA elearning modules: Human Rights and Equity: A Guide for ONA Members: ONA s Accommodation and Return to Work Guide: Available on the executive members section of the website under the Guides tab.

24 Q and A? 24

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