Microsoft word - medical marijuana & safety law

Medical Marijuana - When Human Rights and Safety Laws Collide
When does an employer's right to know, and their legal
obligation to take every precaution reasonable to protect
the safety of the worker, overshadow a worker's rights to
privacy and confidentiality?
Or does it?
Recent medical developments are potentially putting
workers and employers at risk.and sorting through the
complications will require a great deal of time and effort.
The legalization of medical marijuana, and the sharp
increase in prescriptions over the past few years, will have
a profound effect on workplace health and safety policies
and procedures for all companies in the future.
According to many sources, over 400,000 Canadians will be taking medical marijuana within a decade.
This is an issue that will eventually affect almost every workplace in the country. The sooner you prepare for it,
the better you will be able to handle the situation correctly and legally, when it arises at your organization.
Potential Uses and Users
Medical marijuana is currently being prescribed in Canada to treat the following:
Palliative care, chronic nausea and vomiting, wasting syndromes related to AIDS and cancer treatments,
Anorexia Nervosa, Dystonia, Migraine Headaches, Multiple Sclerosis, ALS, Epilepsy, Acute and/or Chronic
Pain, Arthritis, Musculoskeletal Disorders, Fibromyalgia, Osteoporosis, Huntington's Disease, Parkinson's
Disease, Tourette Syndrome, Glaucoma, Asthma, Hypertension, Depression, Anxiety, Sleep Disorders, Post-
Traumatic Stress Disorder, Schizophrenia, Inflammatory Skin Diseases, Alzheimer's Disease, Irritable Bowel
Syndrome, Crohn's Disease, Liver Diseases and Pancreatic Diseases.
This list is being added to on a regular basis as more is learned of the beneficial effects of marijuana treatment
on a variety of illnesses and symptoms.
This Is NOT a New Situation!

The drug in question may be different, but most of the concerns and risks we are discussing are actually old
news.
Many workers show up to their jobs every day, while taking prescription drugs that affect their performance and
mental acuity. The list of "psychoactive" (or "psychotropic") medicines is very long. Some of the most
common are Percocet, OxyContin, Dilaudid, Valium, Xanax, Ativan, Vicodin, Zoloft and Wellbutrin.

Medical Marijuana - When Human Rights and Safety Laws Collide One in 5 people in the United States (about 70 million) takes psychoactive medicine. The percentage in Canada is only slightly lower than that. The effects of various psychoactive medications on users differ, depending on the category and dosage. The Five Main Categories of psychoactive drugs are: 1. Anxiolytics (anti-anxiety medication) and Sedatives 2. Hypnotics and Sleeping Pills 5. Mood Stabilizers
Does your company have a health & safety policy and program for the use of these types of drugs?
If not, the arrival of medical marijuana is going to force your organization to review the use of ALL psychoactive
medicines that can affect performance and judgement.and treat them all equally.
One drug isn't any better or worse than the other.

Human Rights & Workplace Safety Laws
The sanctity of doctor-patient confidentiality is a cornerstone in medical care. It is one of our basic rights that
this information is protected and any disclosure about a person's medical condition must be done only with
their consent.
Under the Ontario Human Rights Code, Section 5.1, we are also guaranteed the right to equal treatment
without discrimination, with respect to employment, on the grounds of disability. Under the OHRC, the
definition of "disability" extends to illness and other medical conditions.
Conversely, under the Occupational Health & Safety Act, workers have a legal obligation to report any and all
hazards they identify in the workplace. This would include reporting their own inability to perform their duties
safely, due to mental and/or physical impairment from medication.
The Ontario Human Rights Code also states that an employee has "the onus to cooperate with the employer"
regarding their need for an accommodation, due to disability. This would include the worker's responsibility to
declare their use of a psychoactive drug that potentially impairs their ability to perform their work safely.
A worker cannot be asked to divulge their medical condition, but it is prudent for them to report the use of any
medication that might affect their judgement and performance.especially if it may endanger their safety, or
that of others.

Medical Marijuana - When Human Rights and Safety Laws Collide
Accommodating workers who have legal prescriptions to take marijuana or other psychoactive drugs, while still
maintaining an employer's and supervisor's due diligence to ensure the safety of all workers, is an issue that
will require time, effort, trust and a thorough review of your current workplace safety policies and procedures.

Your Business Type Will Drive Your Decisions
If your core business is a relatively benign office atmosphere, solving this dilemma may require only a few new
changes in policy and procedure - many of which will probably not impact daily operations noticeably.
If, on the other hand, you work in the more "traditionally dangerous" Construction, Manufacturing, Industrial
and Transportation sectors, be prepared to devote serious time and effort toward refining your policies,
programs and procedures.
The specter of having equipment and machinery operators, or company drivers, performing their duties at less
than optimal mental and physical capacity, is one that should give you pause.and with very good reason.
A failure on your organization's part to identify these scenarios and deal with them promptly and correctly, not
only puts your worker's safety at risk, it also exposes your company to the possibility of expensive human
rights tribunals and lawsuits from wronged parties, injured personnel or the relatives of a workplace fatality.

Things to Consider
Here are some of the points you should keep in mind, as you sort your way through this very tricky issue:
 Employers have a legal obligation to allow workers to use medically prescribed marijuana (and other psychoactive drugs) on the job, if it is necessary for their treatment.  Workers have a legal obligation to perform their duties safely.  Employers and supervisors have to do their due diligence in protecting all workers from injury. This
applies not only to the person who takes medical marijuana or other drugs, but to all those co-workers, customers, etc., who may be impacted by the actions of an impaired worker.  A worker has the onus to disclose their need for a medical accommodation to their employer  Allowing marijuana to be smoked is not a legal requirement. Some places of business have provided a
designated smoking area, while others may ask that employees take their medical marijuana in another form, if possible (for example, using a vapourizer, or ingesting it in their food or drink).  If a person is unable to perform their "regular" job, due to impairment, what accommodations can/should the employer make with regard to a reassignment of duties and responsibilities?  Will the accommodation cause the employer "undue hardship?" Medical Marijuana - When Human Rights and Safety Laws Collide  When recruiting for new hires, employers are severely restricted regarding a number of questions they cannot ask a potential worker - age, marital status, ethnic origin, sexual orientation, religion, etc. Given the implications to safety in the workplace, should an employer be allowed to ask about use of medications, like marijuana, which may cause impairment?  Can/should an employer ask potential new hires for a drug test as a condition of employment? At what point in the recruiting and hiring process would this be appropriate?  How long should an employer reasonably be expected to make accommodations? These considerations are just the tip of the iceberg.and the solutions will vary from company to company,
depending on the nature of their operation and the risk levels that exist in each place of business.
Impaired Versus Medicated
While it is true that medical labs have developed some strains of medical marijuana and synthetic marijuana
that do not cause impairment, a key question that must be asked is "how could you know, with certainty, that
your employee is using one of those strains, rather than a variant that does cause impairment?"
And, to complicate matters further, some people have started growing their own marijuana for medicinal
purposes. If they were to simply put their own "home-grown" blend into a prescription container, would you
have the ability to identify one type of marijuana from the other?
Chances are, that you would not have the skills, time or resources to discern one type of marijuana from the
other.leaving you in the position of having to assume that any medicinal marijuana used by your workers
causes some degree of impairment.
How Impaired is Too Impaired?
One of the more complex issues in this situation is determining the level of impairment caused by the use of
medical marijuana and other psychotropic drugs.
Tests can detect the presence of marijuana.but so far nothing has been developed that can accurately
measure the level of impairment of the subject.
Since residual amounts reside in the liver for quite some time, tests also fail to measure, with any degree of
accuracy, how recently marijuana was used by the person being tested. Did they take it this morning before
work, or last week while they were on holidays?
If you're looking for the equivalent of a breathalyzer, which can accurately send back a blood-alcohol reading
(like .08%), and determine the degree of impairment, it simply doesn't exist for marijuana yet.
Medical Marijuana - When Human Rights and Safety Laws Collide
For that reason, and several others, random drug-testing by employers in Canada is considered to be a
violation of a person's rights under the Humans Rights Code. There is also no case law in Canada that holds
that an employee can be terminated for refusing to take a drug test.
Canada is not alone in the regard - drug testing is not used to any significant degree in any country in the
world, other than the United States.

Your "Zero Tolerance Policy" - Up in Smoke!
Many organizations with working environments that are hazardous and/or with security concerns have adopted
a "zero tolerance" policy toward the use of illegal drugs.
The legalization of Medical Marijuana effectively shoots part of your zero tolerance policy down in flames.
Simply put, you cannot declare zero tolerance for a legally prescribed medication.
That would be akin to saying that your company considers the use of birth control, antibiotics, or other
medications of your own choosing, as grounds for dismissal.
"Liberal" Versus "Conservative" Attitudes
One thing that is very important to recognize, is that your personal attitude toward marijuana use is completely
irrelevant in this new context.
If you are fundamentally opposed to the use of marijuana as a recreational drug, that is perfectly within your
rights. However, you cannot allow your personal prejudices to dictate your actions, or those of your
organization, regarding the use of marijuana as a legally prescribed treatment.
Shedding the Stigma

One factor that makes the use of medical marijuana so touchy is the stigma that the drug carries with it among
so many people.
For any medical marijuana policy to be truly effective, those stigmas must be put to rest. The development and
implementation of a working medical marijuana policy must be created within an atmosphere of cooperation,
comfortable disclosure, and, above all - trust.
No one will openly declare themselves to be a medical marijuana user, if they know they are going to be
judged negatively or subjected to ridicule by superiors and/or peers because of their treatment.
The same is true regarding the use of many other psychoactive drugs, which are often prescribed to treat
illnesses that can carry stigmas of their own (depression, bipolar disorder and other mental health problems).


Medical Marijuana - When Human Rights and Safety Laws Collide
What You Can Do Right Away
This is not an area you are likely capable of handling independently.
Since there are a myriad of laws involved, many of which seem to be in conflict, you would be wise to bring in
expert help, to guide you through the pitfalls of each policy revision and action you may consider.
Company Health & Safety policies and programs need to be thoroughly reviewed and revised to include the
use of all legal drugs that can cause impairment, in addition to the current protocols you have in place for
handling the use of illegal drugs and alcohol abuse.
Supervisors and Managers must be on the lookout for signs of impairment, so the proper steps can be taken to
identify any safety hazards and to accommodate the worker, if appropriate. If your supervisors and managers
have not had any training in identifying impairment, you should provide some kind of guidance for them.
To help you out, some of the most common tell-tales are:  Increased heart rate  Noticeable changes in speech  Slower reaction times  Unusual fear or panic reactions
What You SHOULDN'T Do May Be Even More Important
Oddly enough, the best preparation you might engage in, is putting together a list of "Don't Dos" to provide
some guidance for your managers, supervisors, etc.
While each case of medicinal intoxication may be unique, the way they should be handled, at the onset, should
be thoroughly considered and communicated to all those in a position of authority. At the very least, you
should have a game plan prepared that your team knows they must follow the moment they suspect that a
worker may be performing their duties while impaired in some way.
Medical Marijuana - When Human Rights and Safety Laws Collide
Conclusion
In this new era of medically-approved impairment (for lack of a better phrase), the responsibilities of the
employer, managers and supervisors become much more complex - balancing a person's rights to
confidentiality and approved medical treatment, with their legal obligation to provide competent supervision and
take every precaution reasonable to protect the safety of the worker.
It is extremely unlikely that at least one of your workers isn't taking some form of psychoactive drug, right now.
The addition of marijuana to the list of accepted medical treatments, just adds one more item to the list you
need to be prepared to deal with.
The best thing you can do is take a proactive approach and prepare for that time now.
If you wait until you're actually faced with the situation, you run the risk of having managers and supervisors
making things up on the fly, which will almost inevitably lead to some very costly mistakes.
How successfully your organization will handle this very delicate issue is a matter of being well-prepared, well
in advance.
HASCO is Here To Help
HASCO has devoted a great deal of time and effort toward coming up with strategies and tactics to address
the use of medical marijuana and other psychoactive drugs in the workplace.
Our Health & Safety Consultants are available to review your policies and programs and help guide you toward
building stronger internal procedures and initiatives that protect your workers, make your organization safer
and limit your vulnerability and corporate liability.
We have also partnered with legal experts and Conflict Resolution specialists who can provide you with the
expertise to make sure your revised policies and programs conform to Health & Safety Laws and Human
Rights legislation. Assistance is available from our Conflict Resolution expert to successfully incorporate new
policies and programs into collective bargaining agreements and./or in the event of a dispute.
For more information on HASCO Health & Safety Consulting services
and Training programs, please contact:
(1-855-427-2622)
The information presented in this article is not legal advice. This information is provided solely for the purposes of furnishing
readers with an overview of this issue. Readers are cautioned not to make any decisions based on the information in this
article alone. Legal advice should be sought out.

Source: http://www.hasco.ca/media/uploads/bulletins/Medical_Marijuana__Safety_Law.pdf