One of the most common questions our Cannabis Educatorses get is this: “can I be fired for having cannabis in my system, if I have a Medical Document?”
This is a complicated subject, so we’re going to break the article down into two points:
- What the law and experts say about the subject
- Strategies for talking to your employer or HR department
What’s the law say about cannabis and work?
According to the Human Rights Code of Canada, employees cannot be discriminated against based on several criteria. Two of these criteria are relevant to us: physical disability, and mental disability.
The Alberta Human Rights Act prohibits discrimination in employment based on the protected grounds of race, colour, ancestry, place of origin, religious beliefs, gender, age, physical disability, mental disability, marital status, family status, source of income and sexual orientation. (You can read more about the protected grounds.) Employers can create an inclusive workplace by ensuring all employees are treated with respect and given the opportunity to participate in all aspects of the employment process without discrimination.This includes removing discriminatory barriers that prevent individuals from getting a job or promotion; accommodating employees who have special needs; and ensuring that the work environment is free from discrimination.
The short of it is that discrimination based on disability or illness is not allowed. In that same vein, you cannot be discriminated against based on what medications you take for said disability. However, your employer CAN factor in impairment, which is slowly becoming the focal point of the cannabis at work debate. This excerpt is from Alberta Advisory Committee on Impairment in the Workplace’s 2003 paper Addressing Workplace Impairment in Alberta:
Impairment is a disturbance of the body or mind and all related functions from any cause that results in an unacceptable risk of an individual being unable to safely perform a task at work. The point at which this disturbance in function becomes an unacceptable risk in terms of job performance depends on the job at hand and its hazards.
Essentially, it becomes up to employers and employees to evaluate, task-by-task, what defines an ‘unacceptable risk’ on the job.
One the best summaries of the situation comes from an article in Canadian Lawyer Magazine, and is written by Peter Straszynski. Here’s the excerpt:
On the one hand, employers must have policies in place permitting the medical use of marijuana in the workplace where supported by appropriate medical evidence, as a form of accommodation. On the other hand, employers continue to have the right to prohibit impairment on the job, particularly in safety-sensitive positions. Where an employee claims medical need for marijuana, the request will have to be treated in the same manner as any other request for medical accommodation.
That request for medical accommodation means that medical cannabis patients will need to be ready to provide a plethora of evidence to their employers, possibly including:
- Medical documents
- Doctor’s notes
- Proof of a need to medicate during the workday, because at-home use alone will not suffice
- Proof of a need to use a THC or THC:CBD strain, and not a CBD-only strain
In the article referenced above, Straszynski writes about creating an ‘impairment testing framework’. This is a great segue into the next section of our article:
Strategies for speaking to an employer or HR about your medical cannabis
When it comes to marijuana in the workplace, nothing is black and white. When our patients ask if they’re protected, 100%, simply by being a medical patient, we have to answer ‘no’. Impairment on the job remains a valid reason to be let go and the the reality is, subject to your employment contract, you can be fired at any time. Keep in mind that not all terminations are legal and in the event of an illegal firing, you’ll be left with the choice to contact the labour board, sue, or walk away. If your legal efforts result in a re-instatement, you’ll be back working for an employer that tried to dismiss you – which is awkward at best.
For these reasons, it may be a better option for patients to take the high road, and have an honest dialogue with their employers about their medical cannabis. HR professionals are usually excellent at having confidential discussions about impact of medication and accommodating employees when needed.
Below are some points that we encourage our patients to remember during this dialogue. Keep in mind that these points may not apply to you if you went with a different clinic, and that you have no legal backing if your medication was procured through a dispensary.
- Know, and be able to prove, that your access to medical cannabis was done legally under the ACMPR by a doctor licensed in Alberta. (Both of our staff doctors work at family practices as well – a point which can give your employer more confidence in the clinic that wrote your Medical Document). This is a situation in which getting access through ‘the Weed Clinic’ will be a blow to the perceived legitimacy of your claim.
- Know the THC and CBD levels of the medication you’ll be taking. If your condition is treatable with CBD alone, then you’ll be able to let your employer know that the medication has no psychoactive (impairing) effects. If you are planning to make a case for THC use during the work day, it makes sense to show your employer that you have access to lower-THC strains, or blends, which have less impairing effects during work hours than high-THC strains.
- Know what smoke-free intake options are available to you. Your employer is likely far more comfortable with a team member using a pills or oil over a joint or bong.
- Know, in advance, what functional impairments your employer may be concerned about. For example, if you work in a warehouse, your employer may be concerned about operating machinery, or dropped products. Be prepared to discuss a framework for judging impairment as it relates to your daily duties.
- It’s important to be able to educate your employer on the nature of THC testing. Alcohol, for example, leaves your body rapidly, while THC can stay in your system for weeks. A drug test for cannabis is a very poor indicator of impairment, which is why it makes sense to proactively to come up with an impairment framework. Having a discussion about THC up front is a far better means of getting to this topic than a failed THC test.
As our understanding of, stigma towards, and access to medical cannabis evolves, employers and employees will continue to find themselves trying to moderate workplace cannabis use largely on a case by case basis. Perhaps in the future, we will have a fast, easy, and inexpensive way of assessing impairment on the job. Until then, we firmly believe that an open dialogue with your employer is the best policy. When it comes to intoxication, or perceived intoxication, at work, forgiveness is not better than permission.
Thoughts? Something to share? Please drop them below.
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