Cannabis Use Accommodation in the Workplace
I am busy assisting employers become prepared to manage the risks associated with cannabis use by employees who perform work in safety sensitive work positions. The implications of cannabis use in safety sensitive positions in the Canadian workplace is fluid and will continue to evolve as new information is confirmed through research. Everyone is sifting through the incredible amount of data attempting to discern what to consider when developing cannabis risk management strategies in the workplace.
It is important to approach risk associated with cannabis legalization in the workplace within existing fitness for work principals. The 'noise' surrounding the cannabis topic is precipitating a reactive approach to the issue. Workplaces already have established policies in place to manage risks associated with mood altering substances from a recreational use perspective. Legalization of cannabis does not change best practices required to manage risk associated with mood altering substances. There are specific considerations related to the determination the required hours for employees performing safety sensitive positions after cannabis use. However, I would like to share my thoughts on another implication of cannabis use that poses a significant risk in the workplace.
Accommodation of medical cannabis authorization is an area that does require thoughtful consideration by employers. I am aware of employers who have approved employee requests for accommodation, for the use of cannabis in the workplace, simply through receipt of the authorization. Employers have the responsibility to ensure the standard of safety in the workplace, including having the right to be fully informed when managing accommodation in the workplace, irrespective of the nature of the request. The duty to accommodate legislation does not supersede the employer's responsibility to maintain the required standard of safety. The duty to accommodate legislation is based on the expectation for stakeholders to work together to accommodate protected grounds in the workplace. This translates to employers and employees making compromises and identifying reasonable accommodation solutions that do not result in risk to the standard of safety.
This leads to first threshold when assessing requests for accommodation of cannabis on the basis of medical treatment in the workplace. It may seem obvious to assume there is an actual condition when an accommodation request is submitted however questioning whether a condition exists and substantiated in objective medical evidence, is the first step in reviewing accommodation. Unfortunately, employees may have the expectation that cannabis use authorization will be accommodated because the authorization is received from a physician. However, employers have the right to confirm that a condition has been diagnosed and requires ongoing treatment. Employers are reminded the right to information does not include access to medical information considered confidential under Human Rights legislation and the Health Information Act. In a number of cases, I have reviewed authorizations for cannabis use where there was a lack of objective medical evidence that a condition exists.
Secondly, it is critical to confirm the threshold of need regarding ongoing treatment in every case where an employee requests accommodation for cannabis use when performing safety sensitive duties. Employers also have the right to request confirmation that an employee's medical condition has been adequately assessed, monitored including appropriate follow-up and written fitness for work clearance. I have been involved in cases were a medical condition exists, without adequate rationale for any treatment, far less cannabis use authorization. For example; if the employee's medical condition has existed for 10 years without active treatment, it is appropriate for the employer to question why treatment with cannabis is now being authorized.
The last threshold to be addressed, is the type of treatment recommended, directed or authorized by the physician. Accommodation in the workplace does not specifically presume protection for the type of treatment in the management of a medical condition. Employees generally do not have the right to choose or "self-select" methods of treatment, if there are alternative treatment options which result in reduced risk in the performance of safety sensitive work functions. There are recognized "lines of treatment" prescribed by medical practitioners prior to the consideration of a poorly understood mood-altering substance such as cannabis. Employees have the responsibility to provide confirmation from their family physician (versus the authorizing physician who does not know the employee's medical history) that traditional treatment options have been tried prior to cannabis authorization. In other words, cannabis is not considered as a primary treatment of medical conditions and is especially relevant for employees who perform safety sensitive positions in the workplace.
Employers need to address requests for accommodation of cannabis use in the workplace through clear process language in fitness for work policies. Being prepared before requests are submitted will prevent reactive responses, incomplete assessments and the potential of setting a negative precedence.
The future of accommodation of cannabis use in the workplace is challenging and will be defined as case law rules on employer practices. Final thoughts highlight the need for employers to exercise rigor when managing accommodation requests for the use of cannabis by employees who perform safety sensitive positions. Taking the time to become fully informed prior to making decisions and accessing occupational health experts to assist with the assessment of outlined thresholds is critical to ensuring the integrity of accommodation best practice at the same time as preventing risk to the standard of safety in the workplace.
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