In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding the impact of recreational marijuana at the workplace.
We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.
Can we ask during the hiring and screening process if a potential employee is using medical marijuana for a position that requires driving or that is a safety sensitive position?
Employers may be justifiably concerned about impairment on the job due to the use of marijuana (cannabis) as a prescribed medication, especially if the employee is expected to carry out the duties and responsibilities of a safety-sensitive position. But first and foremost, employers need to remember that the reason a person is authorized to possess medical marijuana is because the employee suffers from a medical condition.
Providing for freedom from discrimination, section 23(2) the Ontario Human Rights Code (Code) prohibits employers from asking questions that directly or indirectly classify or indicate qualifications by a prohibited ground, including disability. According to the Code, “disability” covers a broad range and degree of conditions, some visible and some not visible. There are physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, drug and alcohol dependencies, environmental sensitivities, and other conditions. Notably, the definition is illustrative rather than exhaustive and can likely include a disability for which a person is prescribed to use medical marijuana.
Therefore, to avoid a potential human rights violation, Ontario employers must steer away from asking applicants whether they are medically authorized to use marijuana during the screening stage of a hiring process. Failure to comply by asking an improper question is sufficient to prove discrimination, even if the applicant is ultimately hired for the job, because an inference may be made that the hiring decision was influenced by such questions.
The employer maintains the right to expand the scope of job-related questions to determine the applicant’s qualifications or ability to perform the essential job duties. If, during the interview, the applicant chooses to identify disability-related needs as an issue, then an employer can ask about their accommodation needs and ability to perform the essential duties of the job with accommodation. Otherwise, any questions beyond this scope should be made with great caution and vigilance as they may lead to a complaint on the ground of disability if the person is not hired.
The employer’s opportunity to ask about accommodation needs only arises after making a conditional offer of employment and only where it relates to the essential duties of a safety-sensitive position. At this stage, the potential employee can be asked to review the essential duties of the position and inform the employer of any accommodation needs to perform the essential job duties safely.
Once the employer is informed of a medical condition that requires the use of marijuana as a prescription drug, all the typical principles regarding accommodation of a disability pursuant to human rights legislation apply. The employee and the employer must work together to find a solution so that the employee can equally participate in employment. To do so, employers hiring for a safety-sensitive position can make further medical inquiries to determine if the employee is fit to perform the essential duties of the job and can in fact be accommodated to the point of undue hardship. The employer will need to determine if the employee can perform his or her duties safely and productively while taking this medication. The employer may need to seek expert medical advice on this, just as if it were trying to understand a complicated back injury that restricted an employee’s ability to bend or lift.
Consult The Human Resources Advisor Ontario edition for a more in-depth discussion on compliance and best practices on the topic of medical marijuana in the workplace.
Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.
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