Until recently, medical marijuana licenses were so rare that companies didn’t have to think twice about a zero-tolerance marijuana policy.
As of April 1st, however, access to the drug became easier as Canadians no longer need a license from Health Canada to obtain medical marijuana. Instead, under the Marihuana Medical Access Regulations, a doctor or nurse practitioner can fill out a prescription for the substance. According to Health Canada’s estimations, the country’s legal marijuana supply industry could grow ten-fold in the next decade, bringing the number of medical marijuana users to as many as 450,000 by 2024.
As legal medical marijuana prescriptions increase, employers may have to change their workplace drug policies to accommodate medical marijuana use. But what is a reasonable policy for prescription marijuana use? What if the employee operates in a safety-sensitive workplace? How does this affect workplace drug test results?
In Colorado, where marijuana was recently legalized, many workplaces maintain zero-tolerance marijuana drug policies because marijuana is still illegal at the federal level: “Coloradans can be fired from their jobs for failing a drug test, even if the drug test reveals only trace amounts of marijuana that could have been consumed in a legal place outside of the workplace,” explains Marijuana Industry Group executive director Michael Elliott.
In Canada, where drug testing is not as prevalent as it is in the United States, employers are unable to maintain a de facto zero-tolerance policy for marijuana given the substance’s status as a prescription drug. Employers must make all reasonable accommodations for employees who are impaired by medical marijuana. Still, employees using medical marijuana must follow their workplace drug policies and respect the limitations of being able to perform their job functions safely.
Workplace Drug Policies
The recent case of an on-duty RCMP officer smoking medical marijuana in public is an example how workplace drug policies can address medical marijuana in a safety-sensitive environment. The officer had to surrender his iconic red serge uniform after being filmed smoking medical marijuana in a bid to raise awareness of Post Traumatic Stress Disorder (PTSD). This case is important because it highlights how medical marijuana use can be accommodated and managed in a safety-sensitive workplace.
The officer’s very public use of medical marijuana while in uniform prompted the RCMP to revisit their workplace drug policy. While the RCMP respects the right of officers with prescriptions to consume medical marijuana, their workplace drug policy places conditions on where the medication can be taken. To prevent risks to personal and public safety, the policy also prohibits officers from carrying a firearm or operating a police vehicle while under the influence of prescribed mind-altering drugs such as marijuana or OxyContin.
Not every employee’s medical marijuana use is so public, however, and not every employer has a workplace drug policy that includes provisions for mind-altering prescription drugs—although they should.
Occupational health and safety lawyer Jason Beeho stresses the importance of workplace drug policies including provisions for general impairment caused by prescription drugs, particularly in safety-sensitive workplaces. He states that letters of offer for safety-sensitive positions should include stipulations that employees who are prescribed any impairment-causing medications have a responsibility to disclose that information to their employer.
Unless otherwise stated in their workplace drug policy, employees who use medical marijuana are not required to disclose medical marijuana use to their employers. It is a common position in the Canadian legal community, however, that employees in safety-sensitive positions should disclose their medical marijuana use to their employers., 
Medical Marijuana and Drug Testing Best Practices
Workplace drug testing has to strike a balance between the employee’s right to privacy and the employer’s duty to maintain a safe work environment. As Lynn Korbak, general counsel and corporate secretary with Morneau Shepell, states, open dialogue amongst the employer, the employee, and medical advisers is the best avenue for finding appropriate accommodations for employees using medical marijuana and thereby to maintain a safe and productive work environment. Nevertheless, there could be cases where employees choose not to disclose their medical marijuana use to their employers prior to a workplace drug test.
While employers are required to make accommodations for employees prescribed medical marijuana, as the RCMP discovered, those accommodations are on the employer’s terms. Workplace drug policies can prohibit employees taking mind altering prescription drugs from performing safety-sensitive job functions. As a result, the use of prescription drugs prohibited by an employer’s workplace drug policy can lead to a positive drug test result. But what happens when an employer’s drug policy does not include mind-altering prescription drugs?
There is a significant grey area in the field of drug testing when an employer’s workplace drug policy does not include provisions for the use of medical marijuana and other mind-altering prescription drugs. In these cases, the Medical Review Officer (MRO) and the medical review service determine whether medical marijuana—even within prescribed levels—is reported as a positive or a negative drug test result.
Because marijuana is a mind-altering drug, the presence of marijuana should lead to a positive drug test result for donors in safety-sensitive work environments whose drug policies do not explicitly include the use of prescribed medical marijuana. There are important reasons for this:
- If an MRO reported a negative test result for marijuana on the basis that the amount of marijuana in the donor’s system was within prescribed levels, the employer may make an uninformed decision about that employee’s ability to perform safety-sensitive job functions safely.
- A marijuana-positive test result can initiate a constructive dialogue between the employer and the employee, which may offer the employee non-safety-sensitive workplace opportunities that he or she may not be aware of.
In the absence of a comprehensive workplace drug policy that includes language on the use of medical marijuana and other mind-altering prescription drugs, the MRO ultimately has to decide whether safety concerns are great enough to report the use of a prescribed drug as a positive drug test result.
1. Marihuana for Medical Purposes Regulations (SOR/2013-119) (http://www.laws-lois.justice.gc.ca/eng/regulations/SOR-2013-119/).
2. “$1.3B medical marijuana free market coming to Canada” (http://www.cbc.ca/news/canada/1-3b-medical-marijuana-free-market-coming-to-canada-1.1872652).
3. “Colorado employers increase testing for drug use, survey shows” (www.denverpost.com/business/ci_25341314/colorado-employers-increase-testing-drug-use-survey-shows).
4. “Pot-smoking Mountie can’t smoke publicly in uniform: RCMP” (http://www.cbc.ca/news/canada/ottawa/pot-smoking-mountie-can-t-smoke-publicly-in-uniform-rcmp-1.2442576).
5. “Veteran RCMP officer stripped of his uniform for publicly smoking medical marijuana hands in his red serge” (http://news.nationalpost.com/2013/11/28/veteran-rcmp-officer-stripped-of-his-uniform-for-publicly-smoking-medical-marijuana-in-his-red-serge/).
6. “Accommodating medical marijuana: Should employers bake obligation to disclose into employment contracts?” (http://www.canadianlawyermag.com/5131/Accommodating-medical-marijuana.html).
7. “Medical marijuana and other prescription drugs at work: 9 steps to create a supportive and productive workplace” (http://www.wsps.ca/Information-Resources/Articles/Medical-marijuana-and-other-prescription-drugs.aspx).