'There's a duty to accommodate': employment lawyer on medical marijuana at work

The Workers Compensation Board of P.E.I. is starting to see more requests for coverage for medical marijuana.

In an effort to inform employers about issues surrounding accommodation of medical marijuana, it held a session dedicated to the topic at its annual Workplace Health and Safety conference on Thursday.

More requests

The board's medical advisor, Dr. Hendrik Visser, said the WCB of P.E.I. is "seeing more requests as a board to cover medical marijuana. And we look at those on a case by case basis."

Though he said cases on P.E.I. are "still quite infrequent."

Visser presented during the WCB conference along with Stuart Rudner, an employment lawyer from Ontario. Rudner said as the use of medical marijuana becomes more frequent, it will be important for employers to know their responsibilities and how to handle requests for accommodation.

'Duty to accommodate'

Rudner said many employers he's spoken with aren't informed about medical marijuana and their responsibility to accommodate.

"Often when I tell employers they have to accommodate medical marijuana, their eyes widen, and they envision you know, basically people smoking up in the lunchroom. And it's very different than that," said Rudner. 

You're never going to have to allow a truck driver to come to work while impaired. But you may have to accommodate them by adjusting their shifts, or giving them modified duties.- Stuart Rudner

He explained that medical marijuana, and other prescription medication, "fall within the definition of disability, so there's a duty to accommodate." He said employers "can't just have a knee jerk reaction and say 'no.'"

Rudner explained that accommodating an employee could simply mean adjusting their schedule to better suit their needs.

"You're never going to have to allow a truck driver to come to work while impaired. But you may have to accommodate them by adjusting their shifts, or giving them modified duties," he said.

What to ask, and not ask

Rudner said employers are sometimes afraid to ask questions about a medical marijuana prescription, because they don't want to violate an employee's privacy rights. He said it's important for employers to know what they can, and cannot ask.

Employers are entitled to understand any limitations on the employee's ability to carry out their job function.

"So if they're going to be impaired, if they can't lift certain weights, if they can't sit or stand. They're entitled to ask for medical documentation explaining that," said Rudner. "But they can't do what a lot of employers do, which is ask for the diagnosis, ask for the complete medical file, or any other extraneous medical information."

Rudner said as with any request from an employee for accommodation, an employer should never reject "out of hand," but instead ensure they have all the information they need to make a decision.