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In Canada under the NEW proposed 2018 Cannabis laws duty to accommodate means!

Although marijuana engages the same principles of accommodation as any other possible prescribed or illegal drug problem in the workplace. An employee’s need to consume marijuana triggers an employer’s statutory obligations. Accommodation does not mean allowing an employee to carry out his or her duties while impaired.  The Human Rights Code mandates that an individual has the right to equal treatment with respect to their employment discrimination on the grounds of “disability”.

So where are we NOT LEARNING FROM THE STATE OF COLORADO before this law is passed!

The Code imposes a duty on employers to accommodate employees’ disabilities to the point of “undue hardship”. There are three different factors when determining whether or not the request for accommodation meets the threshold of undue hardship to the employer. First, the court looks to the cost of accommodation. Second, the court looks to whether or not there is any outside funding to help subsidize the costs of accommodation. Third, and perhaps most pertinent to marijuana, the courts will be looking to any health and safety concerns the accommodation may pose.

While second-hand smoke may pose a hazard to other employees, the employer would have to demonstrate that the individual could not be isolated, or that the issuance of a vaporizer would bring undue hardship to the employer. To date, no employer has been able to successfully establish undue hardship based on the health and safety risks posed by marijuana.

Accommodating Marijuana under the Occupational Health & Safety Act The use of marijuana in under current labour and current Health and Safety Legislation employers have the duty to “take every precaution reasonable in the circumstances for the protection of a worker.” Thus, employees do not have a right to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers. In order to appropriately gauge the employee’s capacity to continue to perform their job safely, the employer should request medical documentation from the employee that speaks to the ability to safely carry out assigned duties. Hence if he or she now needs it just like ALCOHOL PROBLEMS in the work place, they are now your problem pending your policies and programs including LTD claims!!!!

To help manage risk resulting from the anticipated increase in employee use of marijuana, employers should ensure their drug and alcohol policy is broad enough to address impairment not only from the use of illegal drugs, but also prescription medication such as marijuana. While there are many nuances to be addressed and tailored to the specific workplace, at a minimum the policy should: • Prohibit an employee in a safety sensitive position from working while impaired • Require an employee to disclose information about any prescription drug that may impair his or her ability to perform work safely • Set out a process for obtaining additional medical/professional information to facilitate accommodation • Ensure the employee (and union, if applicable) participates in the accommodation process • Identify restrictions on the use of  marijuana in the workplace (e.g., where and when) • Identify consequences in the event of a breach of the policy (i.e., discipline)

IN THE EARLY MOST CURRENT STAGES ( SAFETY SENSITIVE OR NOT)

It is important for employers to effectively and precisely communicates the employee’s entitlements and obligations with regards to using, or being under the influence of,  marijuana. For instance, terms such as “impairment” and “under the influence” should be specifically defined so employees understand whether or not they fall under the scope of the policy. Employers should communicate what, if any, uses of  marijuana will be considered acceptable in the workplace, and the appropriate procedure for reporting the use of  marijuana. Employers should also address the disciplinary consequences of breaching the use or reporting protocols. Engaging with employees at an early stage may work to reduce uncertainty and prevent future incidents or litigation.

BUT, if the worker discloses a meaningful impairment in the employee’s capacity to carry out their job, then the employer is not necessarily required to accommodate and the  position involves the use of safety-sensitive equipment. Employees in safety-sensitive positions must inform their employers if they are going to be using marijuana. The employer’s obligation to accommodate does not end when a meaningful impairment of the employee’s ability to perform their current job becomes apparent. The employer will likely be obligated to accommodate the employee in other ways such as allowing the employee a leave of absence while undergoing marijuana treatment, or providing the employee with alternative forms of work that do not engage safety concerns.

Employers should be wary that termination of an employee, without first asking whether the medication or drug the employee was taking was affecting job performance, will likely be found to be inappropriate. It is important for employers to understand that they have a broad obligation to investigate and make efforts to accommodate employees using  medications, including medical marijuana.

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