conference board of canada presentation: medical marijuana in the workplace
TRANSCRIPT
Medical Marijuana in the Workplace:
Managing Challenges without Going up in
SmokeConference Board of
CanadaFebruary 21, 2017
Presented byStuart E. Rudner
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Accommodating Medical Marijuana
What employers imagine
The Duty to Accommodate
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What is Discrimination?“Adverse treatment of a person on the basis of a protected ground”
Direct & indirect– “No Jewish applicants” vs “Must be able to
work on Saturdays”– “Absolutely no marijuana on premises”
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The law expects that:1. There will be a real effort to
accommodate; and 2. There may be some
hardship in accommodating the request.
But BFOR is an exception, and undue hardship is too far.
Bottom Line:
Bona Fide Occupational
Requirements and Undue Hardship
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Bona Fide Occupational Requirement
Bona fide Occupational Requirement (BFOR): a skill or characteristic that is essential to a job, without which the job cannot be performed
If a barrier = a BFOR, the employer may not be required to accommodate – high standard
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Plaintiff:Establish prima facie discriminatory conduct
Employer: establish BFOR1. Standard was rationally connected to
job performance2. Honest and good faith belief of its
necessity3. Reasonable and necessary for
legitimate purpose
The Meiorin Test
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Undue Hardship Duty to accommodate may not apply if it
causes undue hardship. High standard to meet Severe negative effects outweigh benefit
of accommodation
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Undue Hardship Consider:
1. Financial Costs2. Health and safety risks3. Anything else that is
relevant4. Breach of collective agreement is not
Human rights legislation trumps contract
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Responding to Accommodation Requests
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Rules Employers cannot dismiss
requests for accommodation out of hand
For any accommodation request onus is on employees to
provide detailed information
employees are not entitled to dictate preferred form of accommodation
employer can assess all options and determine if any are viable.
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Accommodation Have process for assessment Process is to be 2 (or 3) way dialogue Request (medical) documentation if
applicable Work with employee to understand needs
and limitations Understand how ground intersects with job
duties
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What Can You Ask For?Limitations on ability to carry out job functions
Then: Assess need for accommodation Assess accommodation options
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Employee Role in Accommodation Process
Star Choice Television v. Tatulea: employees must participate in accommodation process– Leave of absence for neck pain – STD denied; employer offered six week
accommodation plan that employee refused to participate in
– Employer’s attempts to discuss went unanswered; employee terminated
– Arbitrator: employee did not live up to “his part of the bargain”
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What should accommodation look like?
Modified or shuffled duties if necessary Modified hours Leave of absence Telecommuting/working from home Provision of assistive equipment
Accommodating Medical Marijuana
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Health Canada estimates that 450,000 Canadians will turn to using legal medical marijuana by 2024
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Same as any other medication?
BUT… Different types of users1. Casual User2. Addicted User3. Self-medicator4. Licenced user Different types/strengths/impact of
marijuana
The (Case) Law Brown v Bechtel Canada: impossible to accommodate
where employee fails to disclose marijuana prescription, condition etc
French v. Selkin Logging: self-medicating employee can be discriminated against but can’t accommodate in absence of prescription" I find a zero tolerance policy for marijuana would satisfy the first two steps of the Meiorin test. However strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes
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More Case Law United Steel Workers, Local 7656 v
Mosaic Potash Colonsay ULC: Er entitled to info to determine if alternative treatments existed
Lower Churchill Transmission: medical note suggesting impairment for 4 hrs after ingestion
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And Even More Case Law Burton v. Tugboat Annie’s Pub: no
discrimination where terminating employer didn’t know diagnosis
Mobo Gymnastics Coach v. Gymnastics Club: dismissal in spite of evidence of disability and no effort to accommodate can = discrimination
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Bottom Line Similar to other
prescription medication But diff ways marijuana
gets into workplace Diff levels of impairment Employee must show need
for accommodation Employer must then
assess
Remember Accommodating disability = accommodating treatment
Avoid stereotyping abilities of employees using marijuana
Educate yourself about use Prove that you have taken every step up
to point of undue hardship Documents all consideration /
assessments
Avoid a Human Rights Lawsuit
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Designing a Policy
Design a “Marijuana Policy”
No need for specific policy – incorporate into “Drug and Alcohol” or similar policy
Address prescription medication Require reporting of use of any medication
that may cause impairment Address reporting mechanism,
confidentiality & privacy
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Best Practices Have ONE process for responding to all
requests for accommodation Require appropriate documentation Assess need for accommodation Assess options DOCUMENT EVERYTHING
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Discipline and Dismissal
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Manage Suspected Abuse
Put reporting procedure in place for use/abuse during work hours
Communicate disciplinary consequences of policy breach
Investigate properly before action/dismissal
Consider human rights issues
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Just Cause: What Does the Employer
Prove?1. The alleged misconduct took place,
and2. that the nature or degree of misconduct
warranted dismissal, bearing in mind all relevant circumstances
Contextual approach
Proportionality is guiding principle
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Stuart E. [email protected] Region: 289-317-1300
Toronto: 416-640-6402
www.rudnermacdonald.com
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