Ontario Erectors Association

The rules around medical marijuana use in Canada are confusing, which can make it difficult for employers to determine their duty to accommodate employees who use it. Marijuana is not an approved drug or medicine in Canada, and the federal government does not endorse its use. However, the courts require reasonable access to a legal source of marijuana for individuals with an Authorization to Possess from Health Canada, and a prescription from an authorized health care practitioner — physicians and, in jurisdictions where permitted under their scope of practice, nurse practitioners. The Marijuana for Medical Purposes Regulations enables licensed organizations to produce and distribute the drug for medical purposes.

Until recently, the only legal way that medical marijuana could be consumed was by smoking. However, in its June 2015 R. v. Smith decision, the Supreme Court of Canada (SCC) ruled that there was no connection between the existing Criminal Code provisions criminalizing non-smoking uses and curbing illegal marijuana use. The SCC, therefore, struck down the provisions, opening the door for legal use of other forms (oil and edibles, for example).

When looking at marijuana use by employees, employers need to ensure a distinction is made between medical and non-medical use. Most individuals who are authorized to use medical marijuana have a disability that triggers an employer’s duty to accommodate under human rights legislation. As such, once accommodation to consume medical marijuana in the workplace is requested, the employer must make efforts to accommodate the employee up to the point of undue hardship. What accommodations are possible will depend on the type of work involved and the availability of modified or alternative working arrangements. Employers should not automatically assume that an employee using medical marijuana will be unable to perform their regular work, although extra vigilance may be required for certain job duties, such as operating vehicles or machinery.

While marijuana is not an approved drug or medicine in Canada, individuals with the appropriate authorization must be given reasonable access to it for medical purposes.