According to one human rights lawyer, if you don’t correctly draft your workplace drug policy for medical cannabis and other medications, you could be looking at a human rights violation in the future.
Colin Fetter, partner with Edmonton law firm Brownlee LLP, said medical cannabis is a tricky drug for organizations to handle. If an employee is fired due to being under the influence of medical cannabis, the employer could be liable for wrongful termination.
“The legal system and the medical system have decided a long time ago that if you’re treating someone with a medication, that’s related to an illness or disability,” he said.
He said people who have medical cannabis prescriptions have certain protections in the workforce under the Alberta Human Rights Act. In the act, employers are to accommodate workers that have a disability, which includes being under the influence of medical cannabis.
Jennifer McCurdy, president and CEO of the St. Albert and District Chamber of Commerce, said she sees medical cannabis prescriptions being a difficult topic for local business owners to understand.
“With medicinal cannabis there was a lot of talk that the employer has a duty to provide alternative work if they deem that the medication the person is on makes them impaired,” she said. “It’s going to get complicated.”
One of her biggest concerns is that there’s no way to currently test if someone is impaired from cannabis.
“There isn’t a clear way to know if somebody is impaired,” she said. “If someone is operating machinery, a vehicle and being in the workplace impaired that’s going to affect their work or the safety of the public … these tests have not been developed.”
That’s where drafting policy is so important. Fetter said if your policy doesn’t currently require employees to reveal they have a medical cannabis prescription, that’s something you might want to add.
If your policy doesn’t include it, and an employee with a cannabis prescription was under the influence at work and was terminated, there’s a possibility they could file a complaint with the Alberta Human Rights Commission and win.
Under the Alberta Human Rights Act, employers are to make reasonable efforts to accommodate an employee's disability to the point of undue hardship.
“(Undue hardship) is way more than what you think it is,” he said. “A little bit of cost, a little bit of inconvenience to you, to the coworkers, that’s not enough for undue hardship.”
If your policy says employees need to disclose if they have a cannabis prescription and they don’t, you could terminate them without worry. If they do disclose, however, it’s up to the employer to accommodate them, which could include giving them other non-safety sensitive work to do.
Fetter broadened the topic to include multiple medications, such as prescription opioids or any other drug that could alter someone’s ability to work.
He said it’s important to view medical cannabis with the same lens, which means your workplace policy should include all forms of medications that could cause impairment.
When it comes to recreational cannabis use in the workplace, on the other hand, nothing is changing.
Kyle Powell, founder of Sure Hire, a company that does drug testing, said the limit his company uses of how much cannabis can be in the system won’t change.
Currently employees can only have 50 nanograms of cannabis in their system, and after legalization that number will stay the same.
Powell and Fetter spoke at a two-day conference where over 200 stakeholders learned about cannabis in the workplace and how to draft policy around it. Cannabis at Work held the conference, which covered medical cannabis in the workplace, drug policy, how the government is drafting regulation and drug testing.