Employee Medicinal Marijuana Use and Workplace Policy: What Are the Implications?
If an employer has a workplace policy that restricts or prohibits the use of medicinal marijuana this could in effect be grounds for discrimination under human rights law. Although the policy may not explicitly target an individual, or be discriminatory due to the language used, it is the effect of the policy that is important. If the effect of the policy results in an individual facing inadvertent discrimination, then the employer must accommodate up to the point of undue hardship.
For instance, suppose a workplace policy limits the use of medicinal marijuana to certain times during the working day. This may not seem discriminatory since the employer does allow those individuals that need the use of medicinal marijuana to do so; however, there may be certain individuals that are negatively impacted. Certain cases may involve an individual that deals with unpredictable chronic pain. If proper treatment for this individual involves the use of medicinal marijuana on an as-needed-basis, then any policy that restricts such use would in effect be discriminatory.
An employer would legally be legally obligated to accommodate in instances where individuals are adversely affected up to the point of ‘undue’ hardship. Simply, the employer must accommodate in a way that would allow an individual to perform the essential duties of the job unless doing so results in unreasonable hardship for the employer. ‘Undue’ hardship is an elusive standard in employment law so if you are faced with any concerns of medicinal marijuana use in the workplace and workplace policy, seeking the consultation of an employment law expert is necessary. Safety sensitive workplaces also add an extra element of complexity. This would require the employer seeking information on the effects the medically prescribed marijuana has on the individual in relation to their job duties and workplace safety, just as would be required for any other medically prescribed drugs. Again, the advice of an employment law expert is strongly recommended in these circumstances.