BCBusiness

VICTORIA PARK NOVEMBER 2017 BCBUSINESS 25 KNOW HOW TO MANAGE MEDICAL MARIJUANA USE If an employee has a disability for which they're using marijuana as a medica- tion, under the Human Rights Code the employer must also accommodate them up to the point of "undue hardship," Zheng says. The employer is entitled to veri‡cation from a medical doctor that this is a legitimate treatment for a real condition that meets the test of dis- ability, points out Howard, and, as with addiction, needn't accept whatever the employee wants to do. "If someone's taking a strong opioid-based painkiller, you have the same issues and the same concerns," he says. EXPLAIN THE POLICY Make sure employees understand what the policy is, what it means, what the Human Rights Code says about medical and non-medical marijuana, and their duty to disclose that they're using it. "The duty to accommodate is a two-way street, and where your safety or your judgment or your reactions could be impaired, there is an obligation on the employee to disclose," Howard says. Zheng's sugges- tion: "Create a supportive environment so that people disclose willingly by them- selves before an accident happens." GO BROAD Consider a policy covering anything that might cause impairment and safety issues, advises Zheng, who notes that "prohibiting non-medicinal marijuana is acceptable, and that falls under the general obligation that you have to show up to work able to do the job safely." Howard adds that an employer has a right to expect sta to be sober when they're working. "It's the same as someone who recreationally drinks alcohol," he says. "There's no legal issue about prohibit- ing recreational marijuana use by your employees, and certainly prior to work- ing or during work. You've got an unlim- ited ability, if you wish, to simply say no." BE AWARE OF THE B.C. HUMAN RIGHTS CODE Addiction is considered a disability under the code, so an employer must accom- modate an employee who is addicted to marijuana, Zheng warns. It's the same responsibility you would have to an alco- hol addict, explains Howard: you don't have to let them come to work stoned or high, but you will have to have to explore what "reasonable accommodation" you can provide. There are no detailed guide- lines regarding duty to accommodate under the Human Rights Code or in case law, so he recommends consulting experi- enced labour and employment lawyers. 1 2 3 4 FOLLOW THROUGH Send the message that if you see somebody breaching the policy, you will enforce the consequences, says Zheng, adding that random and mandatory testing isn't available to employers without a reasonable basis for demanding it. "So depending on what your industry is, what does impairment look like, and when is it beyond a trivial threshold?" In the case of marijuana, Howard observes, there's no accepted eective test for impairment. "But if facts come to your attention that someone may be impaired by marijuana in your work- place, then you've got to take steps," he says, because employers have a signi‡cant legal obligation to keep the workplace safe for everybody. 5 The impending legalization of marijuana in Canada means businesses should look at their workplace impairment policy. Employment lawyers J. Geoffrey Howard, a partner at Roper Greyell LLP in Vancouver, and Cindy Zheng, associate at McQuarrie Hunter LLP in Surrey, discuss who can do what at work by Felicity Stone Going to Pot DIY MANAGEMENT

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