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The Impact of New Laws and Guidance for Employers Carl Cunningham, Partner Bennett Jones LLP Phone: (416) 777-4847.

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Presentation on theme: "The Impact of New Laws and Guidance for Employers Carl Cunningham, Partner Bennett Jones LLP Phone: (416) 777-4847."— Presentation transcript:

1 The Impact of New Laws and Guidance for Employers Carl Cunningham, Partner Bennett Jones LLP Email: Phone: (416) 777-4847 October 22, 2014 Medical Marijuana in the Workplace

2 Marijuana – The Basics Medical Marijuana – The Uses Medical Marijuana – The Legal Framework Marihuana Medical Access Regulations ("Old Laws") Marihuana for Medical Purposes Regulations ("New Laws") Guidance to Employers Approaching the Subject of Medical Marijuana Reviewing and Updating Company Policies Understanding Legal Duties Preparing for Future Developments 2 Outline

3 Types Cannabis Sativa Cannabis Indica Biology Cannabinoids Natural compounds found in the marijuana plant Two main types of cannabinoids Tetrahydrocannabinol ("THC"), and Cannabidiol ("CBD") THC is the most abundant, and CBD is the second THC produces the psychoactive effects most associated with marijuana consumption CBD may reduce users' psychoactive symptoms Researchers believe this gives CBD greater medicinal potential 3 Marijuana – The Basics

4 Side-Effects of Marijuana Consumption Types Users of marijuana have been documented to experience the following side-effects: Short-term memory problems; Impaired thinking; Loss of balance and coordination; Decreased concentration; Changes in sensory perception; Impaired ability to perform complex tasks; Decreased alertness; and Decreased reaction time Duration The side-effects of using marijuana may last between 2 and 6 hours 4 Marijuana – The Basics (cont'd)

5 Studies suggest that marijuana could be used to treat a range of illnesses and conditions. Included in this range are: Acute and chronic pain; Anxiety and depression; Sleep disorders; Post-traumatic stress disorder; Schizophrenia and psychosis; Alcohol and opioid withdrawal symptoms; Inflammation; Irritable bowel syndrome; Obesity; and Diabetes 5 Medical Marijuana – The Uses

6 Old Laws Came into force July 2001 Created a system through which persons could legally possess and grow dried marijuana Three options: Grow it yourself – Personal Use Production License ("PUPL") Designate someone to grow it for you – Designated-Person Production License ("DPPL") Purchase it from Health Canada Caused a significant increase in the number of persons in Canada with legal access to dried marijuana 2002 – 477 authorized users End of 2013 – approximately 40,000 6 Medical Marijuana – The Legal Framework

7 New Laws Came into force April 1, 2014 Replaced the old laws Eliminated many of the barriers to persons accessing dried marijuana for medical purposes Old laws required prescribing doctors and applicants to declare that the applicant was gravely ill and medical marijuana was their only option Old laws restricted the symptoms for which persons could use medical marijuana Old laws restricted the ability to prescribe medical marijuana to medical doctors Old laws involved a long and complicated application process 7 Medical Marijuana – The Legal Framework (cont'd)

8 8 Sample Medical Document for New Laws Medical Marijuana – The Legal Framework (cont'd)

9 IssueOld LawsNew Laws Approved for use with a limited set of illnessesYesNo Doctors have to claim marijuana is a viable treatmentYesNo Large application forms (20 pages or more)YesNo Specialist medical consultations requiredYesNo Supply from Health CanadaYesNo Personal production licensesYesNo Enforceable production quality standardsNoYes 9 Medical Marijuana – The Legal Framework (cont'd) Comparing the Old Laws to the New Laws

10 The changes introduced by the new laws are anticipated to cause a dramatic increase in the number of persons with legal access to medical marijuana This means a growing number of employees may have access to it, creating novel issues in the workplace 10 Medical Marijuana – The Legal Framework (cont'd)

11 Estimates on increase in use of medical marijuana were issued prior to the College of Family Physicians of Canada issuing their report at the end of September 2014 on when family physicians should authorize "dried cannabis" College concerned that "dried cannabis" has not been reviewed by Health Canada in same manner as other prescription medications College's key recommendations that may limit prescriptions include: Only consider for patients with neuropathic pain that has failed to respond to standard treatments Dried cannabis is not appropriate therapy for anxiety or insomnia 11 Medical Marijuana – The Legal Framework (cont'd)

12 Approaching the Subject of Medical Marijuana Take requests seriously Don't stigmatize medical marijuana Medical marijuana presents similar issues as Percocet and Oxycotin Change perception form illegal drug to prescription medication Appreciate the complexities of testing for marijuana consumption Many methods to test for previous drug consumption exist. They include the analysis of hair, saliva, urine, or sweat Different methods have different "windows of detection" Saliva – 1 to 36 hours Urine – 1 to 3 days Sweat – 1 to 14 days Hair – 7 to 100+ days Different "windows of detections" mean: Two positive tests may not mean the same thing Employees who test positive may not be impaired 12 Guidance to Employers

13 Approaching the Subject of Medical Marijuana (cont'd) Acknowledge the difficulties in determining and predicting impairment Determining and predicting employees' reactions to marijuana consumption is challenging Marijuana's impact on persons will vary depending on their: Physical characteristics; Environmental surroundings; and Use frequency Different strains of marijuana contain different cannabinoid levels Cannabis Indica – higher concentrations of CBD Cannabis Sativa – higher concentrations of THC Marijuana plants of the same strain may have different cannabinoid levels THC levels can vary depending on the cultivation technique used and the part of the plant consumed Both THC and CBD levels change over time The consumption method used impacts the onset and duration of marijuana's side-effects 13 Guidance to Employers (cont'd)

14 Approaching the Subject of Medical Marijuana (cont'd) Acknowledge the difficulties in determining and predicting impairment (cont'd) New laws may provide some assistance to employers The labels used by licensed producers must contain specific information THC and CBD levels Expiry date Stability period Employers may request this information (or direct it to be provided to employer's health care professional) from employees using medical marijuana to assist them in predicting impairment levels 14 Guidance to Employers (cont'd)

15 Reviewing and Updating Company Policies Establish acceptable uses of prescription and non-prescription drugs Include medical marijuana as a prescription drug Define important terms, e.g. "impairment" Define broadly (e.g., ensure definition covers any drug (prescription or otherwise) that may affect employee's performance) Some employers could adopt an objective threshold, such as "x" ng/ml Coordinate with Joint Health and Safety Committees Prohibit the sharing or selling of medical marijuana in the workplace Establish disciplinary consequences for policy breaches 15 Guidance to Employers (cont'd)

16 Reviewing and Updating Company Policies (cont'd) Emphasize employer expectations A prescription for medical marijuana does not: Excuse employees from carrying out their duties in an unacceptable fashion Give employees the right to be impaired at work or to be absent or late without a reasonable explanation Establish when persons must disclose their use of medical marijuana Protocols may differ between persons not yet employed and persons who are employees At a minimum, disclosure should be mandatory for all employees with safety-sensitive positions Employers' requirement for disclosure could be highlighted in all offer letters for jobs involving heavy equipment or machinery Establish procedures to be taken following the disclosure of medical marijuana use even if no accommodation is requested Employers who know their employees use medical marijuana may have additional duties if their employees' performance levels decrease (Wilson) 16 Guidance to Employers (cont'd)

17 Reviewing and Updating Company Policies (cont'd) Accommodate for current gaps in the law Company policies will need to cover the smoking of marijuana because the Smoke-Free Ontario Act and the Tobacco Reduction Act only apply to the use of tobacco and tobacco products Will users of medical marijuana be subject to drug testing? (Treat similar to the manner of testing for other narcotic medications) Law since Irving is evolving, but generally, employers may test employees for drugs in the following situations: Pre-access Before a worker is granted access to a worksite Reasonable cause Employer has reasonable cause to believe that an employee is under the influence Post-accident or near miss Following an accident or a close call Self-identified Employee has self-identified as a substance abuser 17 Guidance to Employers (cont'd)

18 Reviewing and Updating Company Policies (cont'd) Establish steps to be taken following a positive test Zero-tolerance policies may no longer be appropriate because they are inconsistent with the duty to accommodate under human rights legislation If employees claim that they have medical authorization to use marijuana, employers should: Request a copy of the medical document or license; and Determine whether accommodation is required and/or possible Employers may be unable to dismiss job applicants only because they test positive for medical marijuana use In New Brunswick, the Canadian Human Rights Commission is investigating allegations by a person that she was not hired by a trucking company because she used medical marijuana and tested positive in a pre- employment drug test 18 Guidance to Employers (cont'd)

19 Understanding Legal Duties Duty to Accommodate Human Rights Code and the Alberta Human Rights Act Employers must accommodate to the point of undue hardship Factors to consider in determining what constitutes undue hardship are: cost; health and safety; and outside sources of funding Employers have rights following a request for accommodation (i.e., What can I demand the employee to provide?) Entitled to request to see the employee's medical document or license Entitled to obtain a second opinion if there is a reasonable basis to believe that an employee is not fit to do the job despite a medical report to the contrary 19 Guidance to Employers (cont'd)

20 Understanding Legal Duties (cont'd) Duty to Accommodate (cont'd) Duty to accommodate may conflict with duties under Ontario and Alberta's Occupational Health and Safety Acts (i.e., Can employee demand to smoke in workplace?) Employers have a duty to protect their workers' health and safety – s. 25(2)(h) (Ont) and s. 2(1)(a)(i) (Alta) The possibility of employees smoking marijuana in the workplace impacts employers' abilities to fulfill this duty Studies indicate that marijuana smoke contains higher concentrations of carcinogens than tobacco smoke Location – Not clear duty to accommodate extends to require employers to provide employees authorized to smoke marijuana with a separate area to do so 20 Guidance to Employers (cont'd)

21 Understanding Legal Duties (cont'd) Duty to Accommodate (cont'd) Alternatives to smoking (i.e., Can I tell an employee to find alternate form of using marijuana?) Accommodation must be reasonable, not necessarily employee's preference Employers may not be forced to allow smoking marijuana at the workplace if alternatives exist that equally accommodate the employee's disability and permissible to explore alternatives Marijuana's medicinal compounds are available in other forms Capsules, baked goods, and vapourization techniques New laws do not require the authorizing practitioner to specify in the medical document a method that the person must use, which may provide employers with some flexibility All forms of consumption do not provide the same effects Whether allowing employees to use an alternative method will satisfy an employer's duty to accommodate is unknown 21 Guidance to Employers (cont'd)

22 Understanding Legal Duties (cont'd) Duty to Accommodate (cont'd) Special considerations for safety-sensitive roles Employers' accommodation assessments may differ if the employees hold safety-sensitive positions Employers may wish to request an independent medical review or a third party examination Employers will need to ensure, however, that these reviews and examinations can provide them with an adequate assessment of their employees' abilities following marijuana consumption This may be challenging given the previously noted unpredictability of impairment The form of accommodation used by employers may, therefore, need to differ between employees in safety- and non-safety-sensitive positions Employees with safety-sensitive positions may need to be placed on administrative leave temporarily or change to a non-safety-sensitive position 22 Guidance to Employers (cont'd)

23 Evolving Area Recent report from College of Physicians Current lack of clarity from tribunals and courts given relatively new changes Need to monitor evolving developments Potential Requests for Coverage Under Drug Plans Using medical marijuana could cost persons approximately $30,000/year Makes the possibility of it being covered through a health benefit plan attractive An employee has already requested reimbursement, but he was denied This case did not involve an employee with a prescription for marijuana, however, it does not close the door on future employee requests 23 Preparing for Future Developments

24 Additional changes in the legal landscape Old law's restriction to "dried marihuana" held to be unconstitutional A court recently said that persons entitled to medical marijuana must be allowed to consume it in all its forms This means that, in the future, employees with a medical document or a license may be authorized to possess different forms of marijuana Developments combined with the commercial producers desire to have more "standardized" or consistent product (e.g., reduced variability in THC levels) may impact the form of accommodation given to employees Different methods of consumption produce different side-effects Employers may need to adopt procedures specific to each delivery method 24 Preparing for Future Developments(cont'd)

25 Questions? 25 Medical Marijuana in the Workplace

26 Carl Cunningham, Partner Bennett Jones LLP 3400 First Canadian Place P.O. Box 130 Toronto, ON M5X 1A4 Phone: (416) 777-4847 Email: 26 Medical Marijuana in the Workplace

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