Medical (and Recreational) Marijuana in the Workplace. Jamie LeMesurier, QC Chad Sullivan

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1 Medical (and Recreational) Marijuana in the Workplace Jamie LeMesurier, QC Chad Sullivan

2 What is marijuana? The cannabis plant originates from Asia. A variety of products can be produced from the flower of the cannabis plant, including: o dried herbal material (i.e., marijuana ); o oil (e.g., hash oil ); o hash (i.e., compressed resin); o concentrates (e.g., shatter ); or o food and beverages (also known as edibles ) containing extracts of cannabis. 2

3 What is the federal government s commitment? 04/20/2016 Liberal government announced that it would be introducing new legislation to legalize marijuana in the spring of Establish systems of production, distribution and sale and provide access to quality-controlled marijuana for medical purposes. Ensure a safer product, minimize unregulated cannabis production and consumption. 3

4 What drove this commitment? Canadian youths. Criminal record. Organized crime. Popular sentiment. 4

5 Therapeutic effects of medical marijuana THC has potential therapeutic benefits for some medical conditions, including: severe nausea and vomiting associated with chemotherapy; poor appetite and significant weight loss as a result of serious long-term or terminal disease (e.g., cancer, HIV/AIDS); certain types of severe chronic pain (e.g., neuropathic); symptoms associated with inflammatory bowel disease; insomnia and anxiety/depression associated with serious long-term disease; muscle spasms associated with multiple sclerosis; and symptoms encountered in palliative care settings. 5

6 The varying effects of medical marijuana Medical marijuana doses are highly individualized and there is no precise or established uniform dosing schedule available to physicians. Dosing relies to a great extent on titration finding the right dose where the potential therapeutic effects are maximized while the adverse effects are minimized (this optimal dose is difficult to estimate and affected by many variables). Peer reviewed scientific and medical literature have suggested people using smoked or orally ingested marijuana for medical purposes report using between 10-20g of marijuana per week or 1-3g of dried marijuana per day. Cognitive impairment may be greatly increased when cannabis is consumed along with alcohol or other drugs which affect the nervous system. 6

7 Adverse effects of medical marijuana Health Canada has stated that adverse effects of marijuana include, but are not limited to: dry mouth; dizziness; drowsiness; drop in blood pressure; increased anxiety or paranoia; reduced concentration; and reduced memory. 7

8 Adverse effects (cont d) Some medical experts argue that patients who are using marijuana for a bona fide medical purpose are relying on the drug to reduce their pain and rarely consume enough marijuana to experience any euphoric effects. Symptoms and side effects from medical marijuana are usually short, ranging from one to two hours. Symptoms from ingesting marijuana in an edible form can last from six to eight hours and sometimes beyond 24 hours. Potential therapeutic and adverse effects associated with medical marijuana use will vary depending on the amount of use, the concentration of the cannabinoids in the cannabis product, the frequency of the use, the patient s age and medical condition and the use of other prescription or nonprescription drugs. 8

9 Medical marijuana in Canada when legal access for marijuana for medical purposes first provided for under an exemption to the Controlled Drugs and Substances Act. The Ontario Court of Appeal s 2000 R v Parker decision - individuals with a medical need had the right to possess marijuana for medical purposes. In 2013 the Marihuana for Medical Purposes Regulations ( MMPR ) was introduced. 9

10 Medical marijuana in Canada (cont d) On February 24, 2016 the Federal Court invalidated the MMPR regulations but suspended the declaration of invalidity for six months in Allard v Canada. In 2015 the Supreme Court held in R v Smith that licensed producers were now legally allowed to sell marijuana for medical purposes in three basic forms: fresh, dried and oil. 10

11 Medical marijuana in Canada (cont d) Access to Cannabis for Medical Purposes Regulations ( ACMPR ). Production and sale of starting materials (i.e., marijuana seeds and plants). Sale of interim supplies. 11

12 Medical marijuana in Canada (cont d) Individuals who have a medical need and the proper authorization of their healthcare provider will now be able to access marijuana in three ways: o Registering with licensed producers; o Register with Health Canada to produce their own; or o Designate someone else to produce it for them. 12

13 Recent news Shoppers Drug Mart applies to distribute marijuana Shoppers Drug Mart has applied for a license to dispense marijuana to patients with a prescription. Pharmacies in the best position to dispense the drug safely and effectively. If Shoppers application is successful, it would require changing medical marijuana policies to allow pharmacists to fill prescriptions in person in retail stores. Currently, medical marijuana can only be legally distributed through the mail. 13

14 Medical marijuana in the workplace The number of medical marijuana prescription holders continues to grow annually. Approximately 75,166 patients were authorized to use medical marijuana under the MMPRs. Health Canada expects that up to 450,000 Canadians will be authorized to consume medical marijuana by

15 Employer s duty to accommodate Employees who hold a valid medical marijuana prescription are protected by applicable human rights legislation. Individuals have the right to equal treatment, without discrimination on the grounds of disability, which includes the right to use medical marijuana validly prescribed by a physician. A medical marijuana prescription does not give employees the right to be impaired in the workplace, nor does it automatically allow an employee to smoke at the workplace (or consume in other ways) whenever or wherever they want at the workplace. 15

16 Employer s duty to accommodate (cont d) Calgary (City) and CUPE, Local 37 (Hanmore), Re, 2015 CarswellAlta 1834 Seek information regarding the impact on the employee s ability to carry out his or her job related functions from the employee s prescribing physician; Take steps to reduce the stigma surrounding marijuana in the workplace and treat all accommodation requests fairly; In order for an employer to meaningfully investigate a medical marijuana accommodation request, the employer needs to establish if the employee will suffer from any level of impairment at the workplace; and If the inquiry discloses potential impairment, the employer may need to provide alternate work, a flexible work schedule or provide a leave of absence if it is a safety sensitive environment. 16

17 Undue hardship Adverse effects and potential for impairment can lead to employees performing work unsafely. May have to transfer some tasks to other employees or offer a compatible position if one is available. 17

18 Medical marijuana cases Smoking marijuana at work, without legal and medical authorization confirming that it is safe to do so is undue hardship. The employer did not violate Human Rights legislation by terminating employment on this basis. (French v Selkin Logging, 2015 BCHRT 101). Failure to disclose a valid medical marijuana prescription can lead to dismissal if disclosure is required under workplace policy (Lower Churchill Transmission Construction Employers' Assn. Inc. and IBEW, Local 1620 (Uprichard), Re, 2016 CarswellNfld 213). On judicial review court remitted the matter back to the arbitrator to consider whether termination was most appropriate penalty. 18

19 Employer s need to know The employer s right to determine what information the employee's physician had about the employee s treatment, whether recommendations were made about the strain potency and frequency of use and whether alternative treatments were available was upheld in United Steel Workers, Local 7656 v Mosaic Potash Colonsay ULC, 2016 CanLII (SK LA). When an employer is aware, or reasonably ought to be aware, that there may be a relationship between the disability and performance, the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance. If those investigations disclose that there is a relationship between the disability and the performance, then the employer has a duty to accommodate the employee to the point of undue hardship (see Wilson v. Transparent Glazing Systems (No. 4), 2008 BCHRT 50 (CanLII)). 19

20 Employer s statutory obligations Medical marijuana = workplace accommodation, the same as any other medically prescribed drug or treatment. However, employers have statutory obligations under Occupational Health and Safety legislation to ensure a safe working environment which includes ensuring employees are not impaired in the workplace. This is especially important in safety sensitive work environments. 20

21 Impairment can it be measured? Arbitrator Michel Picher s decision in Imperial Oil Ltd. and C.E.P., Loc. 900 (Re) (2006) (upheld by Ontario Court of Appeal) remains the leading decision with regard to impairment testing for marijuana. In this decision, Arbitrator Picher held that an oral fluid drug test is a reliable means of determining whether or not an individual is impaired from the consumption of marijuana. Concentrations over 10 nanograms of THC per millilitre of oral fluid will reliably determine that the individual is impaired. This is in contrast to urine samples which do not test impairment, only the presence of the substance in the body. Ontario Divisional Court said that: There is no dispute that the current drug test [oral fluid] does disclose impairment by cannabis 10 nanograms of THC per millilitre of oral fluid was found to be reasonable by Arbitrator Picher in 2014 arbitration involving Halifax Employers Association and Council of International Longshoremen s Association. 21

22 Impairment (cont d) This test is not well known outside of the legal profession and it is contested by some medical professionals who feel that most medical marijuana users do not achieve any euphoric or psychoactive symptoms from medical marijuana use. While the oral swab test can detect impairment, Nanticoke confirmed that the test is not immediate because the oral fluid sample must be sent to a laboratory for testing. This places some limitation on its current use. Devices which can produce on-the-spot results will be in demand. 22

23 Workplace policies It is important for employers to draft new or revisit existing alcohol and drug policies to reflect the increase in marijuana use in Canada. Medical marijuana is being added to the list, alongside other prescription drugs, that can impair judgment and performance. Employers should include a prohibition on any drugs and alcohol that can affect safety, productivity or performance in the workplace. Obligation to report prescription drug use (including medical marijuana) that may impact performance or productivity at work An employer has a duty to investigate any prescription drugs that may affect safety in the workplace and seek any further medical information that may be required. Employees have a corresponding duty to facilitate the accommodation process. 23

24 Questions with respect to a policy Process employee should follow if they feel unwell or impaired after medicating. Documentation required from the employee s healthcare professional. Consequences of failure to disclose medical marijuana use. Confidentiality. Establish drug testing levels based on reasonable (not arbitrary) impairment levels. Disclosure protocol designated person to receive medical information. 24

25 Recreational marijuana in the workplace Recreational marijuana use in the workplace remains illegal and can be treated as such until legislation is passed. Even after recreational marijuana becomes legal, employers will retain the right to prohibit marijuana in their workplace and can modify their workplace policies to enforce this prohibition. Employers should craft policies now to prepare for the legalization of marijuana in the spring of

26 Watch out There may be greater challenges in detecting on-the-job marijuana impairment. The inability of existing tests to do so has traditionally been an obstacle to employee drug testing. However, that may soon be a non-issue as breathalyzers that detect THC, the primary psycho-active component of marijuana, become available. Remember the obligation to accommodate and investigate drug addiction and dependency. 26

27 If you can t be drunk at work, you can t be high at work! Employees must show up fit to work and employees who report to work impaired or become impaired at work may face discipline or termination. Employer policies that require employees to abstain from substance use for a defined period before reporting to work will be enforceable against recreational marijuana users in the same way that they are currently enforceable against recreational alcohol consumers. 27

28 Questions?

29 Thank You

30 These materials are intended to provide brief informational summaries only of legal developments and topics of general interest. The materials should not be relied upon as a substitute for consultation with a lawyer with respect to the reader s specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to these materials or their application to you, you are encouraged to consult a member of our firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments. 30

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