The employer pitfalls of legal marijuana

Washington and Colorado offer lessons to Canadian HR leaders as employers try to navigate new challenges around legal drug use.

When Denver-resident Brandon Coats was asked to take a random drug test, he knew he was going to fail. He used the drug, legally, to relieve the painful spasms he still suffered almost 20 years after being paralyzed in a car crash.

Despite having a medical marijuana card, his employer Dish Network fired Coats for violating its drug-free workplace rules.

"There are a lot of people out there who need jobs, can do a good job, but in order for them to live their lives, they have to have this," said Coats, 35. "A person can drink all night long, be totally hung over the next day and go to work and there's no problem with it."

Coats is taking his case to the Colorado Supreme court this month to challenge the 2010 decision, and if he wins the case it could change how U.S. employers must treat medical marijuana users.

But how does the situation in Canada differ? Random workplace testing is out, even for safety sensitive positions, and if an employee has a prescription for medical marijuana they likely have a condition that qualifies as a disability so HR has an obligation to accommodate.

The main issue for HR is going to be whether use of medical marijuana puts the employee or others at risk. Although medical grade marijuana is supposed to be largely pain relieving without getting individuals high, reports indicate that is not always the case with different people reacting in different ways.

“Most employers with proper policies will say if you’re required to take prescription painkillers with known side effects inform your supervisor,” CC Partners employment lawyer Kelsey Orth says. “Safety sensitivity is important with regards to any kind of drug. I think a stigma attached to marijuana has to be avoided or ignored by employers and they need to focus on what the actual accommodation is.”

There is not currently a way to accurately measure impairment on drugs. Where alcohol testing can show how impaired someone is, testing for pot and other drugs often only shows whether someone has used one of the substances in the past days or weeks, not whether they are currently impaired.

“It’s going to make it difficult for employers to find an objective test,” Orth says. “I expect the cases we see will be employers making judgement calls and those decisions being called into question.”

If you know or suspect an employee is using medically-prescribed marijuana, your organization’s accommodation obligations have likely already been triggered so proceed like you would with any disability accommodation process. Talk to your employee, get the necessary information from their doctor and ensure you are working to find the best accommodation options for the individual and organization.

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