Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.
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18 Canadian Occupational Safety www.cos-mag.com BY CHERYL EDWARDS AND LORETTA BOUWMEESTER LEGAL LANDSCAPE Duty to accommodate or just blowing smoke? Employers increasingly need to address medical marijuana in the workplace T he prescribed use of medical marijuana is on the rise and likely coming soon to a work- place near you. This presents a challenge for safety professionals and their human resources colleagues in numerous industries, in both safety sensitive and non-safety sensitive work environ- ments. While the debate continues as to whether or not marijuana is effec- tive in treating serious illnesses (like terminal cancer, epilepsy and post- traumatic stress disorder), the practical reality is marijuana is an impairment causing substance that employers should proactively address. In the United States, 20 states have legalized the medical use of mari- juana. As of Jan. 1, 2014, Colorado has legalized recreational use, which has resulted in three times more mar- ijuana dispensaries in Denver than there are Starbucks and McDonald's combined, according to CBS news. It has created the reality of "pot tourism" and your workers could be partaking. The legalization and ready access in the U.S. will likely increase worker access and use in Canadian work- places due to both political pressure to decriminalize it for recreational use and the existence of safer, more acces- sible supply chains in the U.S. THE LAW IN CANADA In Canada, recreational marijuana use remains illegal, for now. The effort to legalize medical marijuana began in earnest in the mid-to-late 1990s, when advocates began clamoring for a legal exemption to the criminal law that would allow the sick or dying the right to obtain medical marijuana for pain relief. In July of 2000, amidst numerous cases before the courts, the Ontario Court of Appeal released the landmark decision of R. v. Parker. The case struck down the pro- hibition against the possession of marijuana on constitutional grounds and hinted at the possible existence of a medical exemption that protected the patients' right to access medical marijuana. In response, the Canadian government introduced the Marijuana Medical Access Regulation (MMAR), making Canada only the second coun- try in the world with a government-run marijuana health program. The MMAR came into force in July 2001 and allowed for the posses- sion and personal use production of marijuana by people who, with their doctors, could show a legitimate medi- cal need. The Canadian government has since introduced the Marijuana for Medical Purposes Regulation (MMPR), which is operating in concert with the MMAR until March 31, 2014. At that time, the MMAR and all licenses issued under it will expire. The new program will allow patients to access medical marijuana directly through their doc- tors, who will be able to issue a medical declaration that will allow the patient to place an order for dried marijuana from a licensed producer. As of April 1, 2014 , Health Canada will no longer produce or sell mari- juana for medical purposes. Similarly, permit holders who were permitted to grow medical marijuana for personal use at home, or who have designated others to grow it for them, will no longer be able to do so. Instead they must get medical marijuana from a licensed producer. The number of Canadians autho- rized to possess medical marijuana has grown exponentially in the last 10 years. In 2003, 605 Canadians were authorized to possess medical mari- juana. That number grew to 4,793 in 2009. By the end of 2012, there were 28,115 authorizations granted. Based on the latest statistics from Health Canada, the number of Canadians authorized to possess medical mari- juana is 37,359 and is expected to grow to 450,000 in the next 10 years. 'DESIGNER' MARIJUANA In short, there is likely to be a lot more easily accessible marijuana — medically prescribed or otherwise. Synthetic marijuana is already avail- able. Marijuana will also likely be available in pill form and as a food ingredient. There is a strong push right now from small entrepreneurs and big pharmaceutical companies alike to come up with "designer" marijuana strains that treat specifi c symptoms and do not have the related cognitive and motor skill impairment com- monly associated with the drug. The Canadian Medical Protective Association (CMPA) recognizes pre- scribing marijuana will be diffi cult for doctors. There is relatively little scientifi c study of the drug given its long history of being illegal. Addi- tional training is required for doctors so that they better understand dosage, side effects and can make effective rec- ommendations for accommodation. DO'S AND DON'TS FOR EMPLOYERS • Do have a drug and alcohol policy that addresses workplace impair- ment from prescription, over the counter and illegal drugs. • Do ensure the policy is effectively implemented, training is provided to workers and supervisors, and the consequences for failing to comply with the policy are understood. • Do accommodate an employee where there is a legitimate underly- ing disability. This could include an independent medical exam, leave of absence or temporary reassignment. • Don't wait for an employee to come to you. Check with your benefi ts pro- vider to see if the cost will be covered, be aware of your disability benefi ts limits and coverage, and know what other resources you can offer. • Do work with the employee, his union representative and medical professionals to determine what checks and balances will need to be in place to ensure the employee, co-workers, the public and the envi- ronment are properly safeguarded. • Don't get distracted by the source of the impairment, but focus on the issue of impairment. Treat this source the same as you would any other prescription drug. Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and leads Heenan Blaikie's national OHS and Workers' Compensation Practice Group. She can be reached at cedwards@ heenan.ca or (416) 360-2897. Loretta Bouwmeester is a partner in Heenan Blaikie's Calgary Offi ce and a member of the fi rm's national OHS and Workers' Compensation Practice Group. She can be reached at lbouwmeester@ heenan.ca or (403) 234-1256. Special thanks to Wilson Chan, articling student, for his assistance. Duty to accommodate or just blowing smoke? there are Starbucks and McDonald's before the courts, the Ontario Court of Synthetic marijuana is already avail- able. Marijuana will also likely be available in pill form and as a food ingredient. There is a strong push right now from small entrepreneurs and big pharmaceutical companies alike to come up with "designer" marijuana strains that treat specifi c symptoms and do not have the related cognitive and motor skill impairment com- monly associated with the drug. Association (CMPA) recognizes pre-