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Medical marijuana could pose a problem for employers: experts

As medical marijuana gains traction as a treatment option for a host of conditions including chronic pain and other conditions, Canadian employers could find themselves grappling with a sticky issue.

Employers have a duty to accommodate workers' medical needs, but not at the expense of safety

Employers have a duty to accommodate workers' medical needs, but experts say that duty cannot and should not compromise workplace safety. (Sean Gallup/Getty Images)

As medical marijuana gains traction as a treatmentoption for a host of conditions including chronic pain and otherconditions, Canadian employers could find themselves grappling witha sticky issue.

"Individuals have the right to equal treatment ... withoutdiscrimination on the grounds of disability," says Jan Robinson,managing principal at human resources firm Morneau Shepell.

"Medical cannabis now needs to be viewed like every otherdoctor-prescribed drug."

But although employers have a duty to accommodate workers'medical conditions, experts say that duty must be balanced with theneed to keep the workplace safe. That can be challenging, especiallyif employees perform duties such as operating machinery.

"There's no hard or fast rule to this," says Natalie MacDonald,an employment lawyer and the co-founder of Rudner MacDonald LLP.

"It's got to be determined on a case-by-case basis, as most thingsin employment law do."

Caveat to the duty to accommodate

Experts says the duty to accommodate comes with an importantcaveat: It must not result in undue hardship for the employer.

While there is no strict definition of what constitutes unduehardship, MacDonald says the courts will consider a number offactors including how much financial difficulty the company wouldendure and whether accommodating the employee would compromiseworkplace safety.

"A small organization that has to incur serious financialhardship as a result of trying to accommodate an employee may crossthe test of undue hardship," MacDonald said.

Duty to accommodate tested in B.C.

A recent decision issued by the British Columbia Human RightsTribunal illustrates some of the limits that apply to the employer'sresponsibility to accommodate workers' needs.

The Tribunal ruled in July that B.C.-based Selkin Logging did notviolate John French's human rights by refusing to allow the loggingcontractor to use marijuana while on the job.

The company, which has a "zero tolerance" policy on marijuanause, had argued that it did not discriminate against French based onhis use of cannabis to handle the symptoms of cancer, but rather wasconcerned about safety.

In addition, French was not authorized by Health Canada topossess medical marijuana, although he claimed he was using the drugto ease cancer-related pain as per his doctors' recommendations,according to court documents.

MacDonald says that if French had proper medical documentation,the outcome of the case may have been different. However, safetyconcerns still need to be taken into account, she adds.

Medical marijuana a growing workplace concern

One alternative way to accommodate a worker's needs would be toprovide the worker with a leave of absence until the medical issueis resolved, MacDonald said.

"In some cases, it may be that the employee needs to be providedwith alternative forms of work that don't attract any particularsafety concerns," MacDonald said.

As cannabis becomes a more popular treatment choice HealthCanada has estimated there could be nearly half a million users by2024 the issue is likely to start cropping up at workplaces acrossthe country.

"We are starting to recognize that this trend will commence veryshortly across Canada," said Robinson, noting that Morneau Shepellhas been advising its clients to review their existing drug andalcohol policies to ensure they are adequate.

"If they don't look at their drug policies now, they may haveissues in the future," she said