Medical Marijuana: Vocational Perspectives and Impacts
According to Health Canada the number of people registered to use marijuana for medical purposes is 167,754 as of March 31, 2017. In comparison the total number of registrants for use of medical marijuana as of March 31, 2016 was 53,649 and on the same date in 2015 the number was 18,512 (Market Data, Licensed Producers Medical Marijuana, Health Canada March 31, 2017). This exponential growth suggests that the number of people using marijuana for medical purposes may be expected to grow further making medical marijuana a reasonably commonplace treatment for some ailments. This proliferation raises questions regarding medication and work; some specific to marijuana and others more widely applicable.
The Legal Conundrum for Employers
According to Kees Kort, a lawyer at Hicks, Morrie LLP who had specialized in labour and employment law for 40 years, employers face duelling legal obligations with regard to medical marijuana use. “The employer is obligated to ensure the safety and health of the workplace. The employer is also required to provide reasonable accommodation when they know or ought to have known such accommodation is required for an employee to complete the essential duties of their occupation.” Mr. Kort further described that the accommodation responsibility “extends to the point of undue hardship, must offer meaningful work and be dignified in nature”. Mr. Kort made plain that undue hardship includes and may be triggered health and safety considerations. Therefore health and safety considerations in the case of medical marijuana constitutes and undue hardship upon the employer. The employer has the right to revisit the need for the accommodation from time to time.
With regard to medical marijuana the principles of accommodation and a safe workplace may come into conflict around the prospect of impairment related Mr. Kort. Furthermore Mr. Kort stated that as of now there is no test to accurately measure impairment from marijuana. Lastly, Mr. Kort described a secondary concern, “impaired is the inability to complete the duties and tasks of one’s job. This makes impairment a job dependent matter. Specifically impairment may mean something different for a typist than a truck driver”.
To what extent have decisions in Canada informed us generally?
In French v. Selkin Logging 2015, Mr. French, a logger and a cancer survivor, smoked marijuana several times throughout the workday to manage chronic pain. Although a doctor had told the complainant he could use marijuana if it worked, the complainant did not have any formal documentation permitting him to lawfully possess and use marijuana for medical purposes. Prompted by safety concerns, the employer told the complainant he could not continue working if he continued smoking at work.
Although there was no evidence that marijuana use had ever affected the complainant’s performance, the British Columbia Human Rights Tribunal concluded that the employer’s “zero-tolerance policy” was a bona fide occupational requirement. The Tribunal found that the dismissal was not discriminatory.
The case before the Alberta arbitration board Calgary (City) v. Canadian Union of Public Employees, 2015, the individual was responsible for operating a grader on city streets. To reduce pain caused by a back injury, he obtained a permit for medical marijuana and began using small amounts at night before going to bed. After the individual underwent an Independent Medical Examination, the employer decided the employee could no longer occupy a safety-sensitive position and accommodated him in a non-safety sensitive job.
The board of arbitration found that the IME was based on inaccurate information from the employer. It found there was no evidence of substance abuse or impairment at work. The employer was ordered to reinstate the employee to his former position as a grader operator. However the arbitrators ordered the employee to undergo random marijuana testing in the future, to ensure he would not be impaired at work.
In M obo another v. V. Gymnastics Club, 2016 a newly hired gymnastics coach advised her employer that she used prescribed cannabis to treat an ailment and that it did not cause impairment or interfere in her work duties. This was based on an employee complaint the coach “was stoned” at work. The employer extended her probation by one month and warned against impairment in the workplace. The employer then instituted a “zero tolerance” policy. After a year of employment at a performance review the coach was suspended and given a medical questionnaire. This was completed by a treating physician and the employer refused to allow the coach to return to work if she used marijuana. The Tribunal concluded that the information provided by the employee’s doctor did not appear to suggest that the employee’s work was compromised by her use of medical marijuana and denied the employer’s application to dismiss the complaint to the BC Human Rights Tribunal.
Finally in Brown v. Bechtel Canada and another, 2016 the BC Human Rights Tribunal denied the employer’s application to dismiss a complaint levied by Brown for his dismissal. Brown was pre-employment tested (negative) and at that time produced his prescription to use medical marijuana. When seen on-site smoking marijuana (a work camp) he was fired. The Tribunal found that the employee was dismissed for reasons related to his use of medical marijuana and concluded that the employer had not provided any evidence that it took any steps to accommodate the employee.
In these cases, the threads of accommodation, workplace safety and impairment as identified by Mr. Kort are all evident. In general, the lack of impairment and disclosure resulting in a duty to accommodate appear to be upheld except in a case involving bona fide occupational requirement.
Impairment
According to Danial Schecter, MD, CCFP, Executive Director of Cannabinoid Medical Clinic in a presentation to the Vocational Rehabilitation Association of Ontario on November 7th, 2014, marijuana contains a number of cannabinoids, only one of which has psychoactive properties. Tetrahydrocannabinol or THC is the affective cannabanoid in this regard.
According to Alison McMahon, owner of Cannabis at Work, a company which advises on issues linked to the use of the drug for medical reasons, and helps firms find employees for the marijuana industry, marijuana can be bred for specific properties such as greater or lesser THC presence. “The type of strain of marijuana varies by a person’s medical condition”. Also, “impairment may be affected by a person’s tolerance to the drug, the time when the drug was taken and the method by which it was taken. For example taking marijuana with a vapourizer has a quicker absorption effect than through ingestion. However ingested marijuana may have a longer effective time span.”
Ms. Mc Mahon agreed that there is no test of impairment. She reported that tests exist to determine if a person has used marijuana including a mouth swab test that indicates use within a prior 4 hour period. However given the varieties of marijuana strains and their different concentrative levels of THC the presence, even recent presence, of marijuana may not be indicative of impairment. When taken together with impairment as a functional standard relative to job duties the situation of impairment from marijuana on the job becomes murkier.
This raises questions for safety sensitive occupations in which impairment may hold the greatest risk for injury to self or others. What standards are being used if any? In the United States of America any US DOT (Department of Transportation) regulated employees are prohibited from using cannabis. This encompasses truck drivers, locomotive engineers and airplane pilots. Is a zero tolerance policy for medical marijuana a suitable answer for safety sensitive occupations? Ms. McMahon thought otherwise indicating a person can be unimpaired at work with marijuana use.
In Canada, an airline pilot testing positive for cannabis will lose his Medical Validation Certificate with an automatic and immediate removal from flying duties. The length of the suspension depends on the participation by the pilot in an approved rehabilitation program and on his oversight by a recognized multidisciplinary team. The program must be approved by Transport Canada. It is unclear if this standard has been updated to include medical marijuana.
The International Association of Chiefs of Police have developed a 12 step Drug Recognition Expert protocol which can be used for detecting impaired driving. The methods of assessing impairment were described and the standard at which impairment was determined was the rendering of an opinion, “Based on the totality of the evaluation, the DRE forms an opinion as to whether or not the subject is impaired.”
The DRE model suffers from drawbacks with respect to its applicability for addressing vocational/return to work issues. The protocol was created to assess degree of impairment for an unknown substance. In the case of medical marijuana the medication and quantities are known. The DRE protocol is applied to the standard of automobile operation predominantly and the world of work contains many more varied task profiles. Consequently the DRE protocol may not be suitable for assessing impairment against different job tasks. Lastly, the DRE protocol does not inform accommodation needs at all.
Health Canada 2013 (Information for Health Care Professionals: Cannabis (marihuana, marijuana) and the cannabinoids ) described the following performance effects from cannabis (THC), “Cannabis impairs cognition involving faculties such as short-term memory, attention, concentration, executive functioning and visuoperception” and, “Although no studies have been carried out to date examining the effects of cannabis or psychoactive cannabinoid exposure on psychomotor performance in individuals using these substances solely for medical purposes, it is well known that exposure to such substances impairs psychomotor performance”.
However, Health Canada also states “This document should not be construed as expressing conclusions from Health Canada about the appropriate use of cannabis (marihuana) or cannabinoids for medical purposes”.
While it appears agreed that cannabis may cause impairment the question remains open as to what degree impairment may occur, if at all, under appropriate medical supervision.
Vocational Considerations
In his presentation of 2014 Dr. Daniel Schecter reported that 35% of his patients at the Cannabis Clinic were employed or in school. Present data was not found. However given the exponential increase in registered users it is assumed that the number and percentage of users seeking and maintaining employment is also increasing. In light of the information above, what practices may be useful for vocational rehabilitation professionals?
As always, listen to your client. This need not be expounded on greatly as it provides the framework for services that will be delivered and as we know contributes overarchingly to a successful outcome.
Communication between the VR, client, treatment team and employer is warranted. With the treatment provider and client, issues can be explored and addressed such as: Does the prescription cause impairment? Can this impairment be reduced through dosage amounts, types and timing to mitigate effects at work? As seen in Calgary (City) v. Canadian Union of Public Employees and in M obo another v. V. Gymnastics Club, 2016 a lack of impairment, or the ability to complete all tasks of the job, was central to maintaining own occupational employment.
Discussion with the employer also appears warranted. Is the occupation in question safety sensitive or pose a safety risk? Are there workplace policies to be understood in a successful return to work? If so disclosure in a return to work plan negotiated by all parties allows the employer to make reasonable accommodation. Both Ms. McMahon and Dr. Schecter indicated the use of an IME to satisfy the employer and employee that a return to work is safe to do. Ms. McMahon described an assessment performed by an occupational health physician versant in medical cannabis effects as a high standard. An alternate assessment for some circumstances may be a situational assessment which replicates workplace duties to determine if any accommodation is required. The results of such an assessment in a return to work plan, with the client’s approval, may assuage employer concerns regarding performance. If accommodation is needed what type and for how long also require clarification among all parties.
The issue of disclosure with medical marijuana may change. Given the expectation of legalization of marijuana in 2018 “zero tolerance policies” regarding use may be challenged. If the client uses the drug without impairment the need to disclose to avoid dismissal on the ground of zero tolerance may no longer be a consideration in some instances. However for now, this remains a topic to be thought over in a return to work plan.
What of assessment in the case of the requirement to obtain alternate employment? Discussion with the client and treatment provider to develop a regimen that lessens side effects would reasonably be expected to increase the number of potentially viable alternate occupations. Can measures of cognitive function be undertaken to determine functional capacities to allow for effective occupational identification? Might a functional abilities evaluation assist in determining psychomotor function for the same purposes? In the situation of vocational assessment it appears some care is warranted in determining functional abilities for occupational identification, let alone pre-employment training.
Overall medical marijuana is a treatment for a variety of illnesses. To that extent it is expected to primarily alleviate symptoms and restore function. It is reasonable to expect this treatment to improve work performance as compared to an untreated person. That perspective, the improved performance of the individual, is a positive basis on which to begin return to work planning with the client and employer.
This article is written to prompt thought from VR practitioners on the area of medical marijuana and return to work. It is not intended as prescriptive or wholly encompassing of every potential consideration. With the increasing use of medical marijuana in Canada the likelihood and pleasure of serving a client in such circumstance increases as well. As a result VR professionals are encouraged to remain knowledgeable about issues surrounding medical marijuana so as to suit their professional scope of practice.
Peter Campbell, BA (hons), RRP, CVRP, CCVE is a vocational rehabilitation consultant in the Belleville, Ontario area. He has worked in the field for greater than 20 years most recently providing case management and assessment services. In his spare time he is a boxing coach at Belleville Bulldog Boxing Academy and is working to create a program for people with Parkinson’s disease to increase strength, balance and motor coordination for those afflicted.