Use of medical marijuana at work is on the rise. Both in the U.S. and Canada, employers are now facing a dizzying array of rules, regulations and situations that are far beyond what was once a simple issue of drug testing and ruling out employees, and potential employees, based on a positive result. The problem now? Marijuana may be a prohibited controlled substance in some situations but allowed in others. Here we'll look at some of the issues marijuana now presents for employers.

Medical Marijuana Use in the United States

As of September 2016, there are 25 states with medical marijuana laws and regulations. However, the U.S. federal government still considers marijuana use illegal in all forms. Therefore, the rules are complicated, and despite local legalization of medical marijuana, employers in some states may still be able to fire employees if they use the substance, even if they are not impaired at work. According to a 2015 ruling in Colorado, a state where medical marijuana is legal, companies can fire medical marijuana patients for use of the drug off-premises.

Experts believe the Colorado case could be the basis for case in other courts in the future. Estimates suggest that as of 2014, there are more than 2 million medical marijuana users across the country, even in states without widespread medical marijuana use. This poses a major conflict for employers who want to maintain a drug-free workplace, but aren't sure on which side of the law employees who are using marijuana medically may fall.

Medical Marijuana Use in Canada

Since 2014, Medical Marijuana Access regulations have led to a situation where Canadians who need to use marijuana for health purposes do not have to secure Health Canada approval before obtaining the substance. Regulations announced in August 2016 states that Canadians who have been authorized by their health care provider to access cannabis for medical purposes will be allowed to purchase it from licensed producers or grow a small amount for their own consumption.

The medical marijuana industry is growing, and according to the National Post, Health Canada believes that the number of licensed users is going to increase tenfold by 2024. It is believed that by that stage, the industry could have revenues of $1.3 billion and there will be 309,000 legitimate users at work. Employers now have to factor medical marijuana use into their rules and safety plans, rather than simply forbidding the use of marijuana completely, so they can accommodate the medical needs of employees according to the Canadian Human Rights Act.

Conditions Treated With Medical Marijuana

Medical marijuana is used to treat a range of different medical conditions. These can include HIV, sleep disorders, back and neck problems, chronic pain, Crohn’s disease, arthritis, attention deficit disorder, eating disorders, migraines, and complications from cancer and cancer treatments. Medical marijuana is not all smoked. There are many forms of medical marijuana, and THC amounts vary widely as there are other compounds within marijuana with therapeutic benefits. Some of the most common ways to take medical marijuana are smoking, food additives, oils, a diffuser, pills and topical creams or lotions.

Medical Marijuana Issues for Employers

The first issue of medical marijuana that employers must remember is that, like other prescription drugs, it does not give an employee a free pass on other laws. In other words, having a prescription for marijuana does not allow an employee to drive while impaired, any more than a prescription for morphine would allow a driver to operate a vehicle while impaired.

Employers may have to accommodate medical marijuana at work depending on local and federal regulations. This raises concerns about impairment of function, since medical marijuana, depending on the concentrations of THC and other substances, can have side effects that can diminish function. This is sticky ground because assuming that impairment exists is not permitted in some locations unless there are legitimate safety reasons for making such assumptions. However, keeping all workers safe at work is also required by other regulations.

As the Ethics Centre (Canada) reports, “a prescription for medical marijuana is not a license for undue impairment at work." The general principal behind this reasoning is that if an employee is not able to do their job effectively and safely while taking any type of medication, medical marijuana or otherwise, then the employer is within their rights to address this with the employee. Specifically, according to the Occupational Health and Safety Act (Canada), employees have to be protected at work, and it is not permitted for other employees to be impaired if this will result in either that employee himself, or other employees, being exposed to danger in the workplace.

The Ethics Centre suggests that if an employee asks to be allowed to consume medical marijuana at work, the employee needs to be able to supply medical proof (documents) that shows that the employee can still do their job in a manner that is safe and productive. If this is not found to be the case, then any such request for consumption at work can and should be withheld. One option for employers might be to accommodate the employee in a different position where medical marijuana will not affect safety.

However, if the employee takes medical marijuana by smoking, there are more issues to be considered. Smoking cigarettes within employer buildings or close to entrances is not allowed at work sites in Canada and is restricted in many U.S. worksites as well. As a result, the issue of where to allow medical marijuana users to smoke arises. There are several issues at play here. One is that of smoking, generally. While it might initially seem that the obvious answer is to apply the same principles to medical marijuana users as to smokers, the problem is that medical marijuana is different from regular cigarette smoking.

It may actually be unreasonable to make medical marijuana users smoke in the same place as smokers for two reasons. One is that this will bring their medical issues to light with their colleagues, which raises ethical questions and legal privacy issues. The second is secondhand smoke. Secondhand marijuana smoke is obviously not the same as normal cigarette smoke and could both affect the safety/productivity of other workers as well as posing consent and legal use issues. This leaves employers with having to consider introducing a specific room or private area for medical marijuana smokers to go to where they can smoke confidentially and not expose others to the smoke.

Drug Testing in the Age of Medical Marijuana

Drug testing becomes challenging when regulations, laws and circumstances result in some employees being held to different standards than others. For example, it raises the question of whether employees should be obliged to disclose that they are prescribed medical marijuana. Another question that springs up from this is whether such employees should be exempt from drug testing. The answer is likely not, however, the employer needs to develop a policy that can handle the situation effectively. Challenges have already arisen with regards to drug testing in some areas. For example, according to an article that appeared in the Toronto Sun in 2014, Patti Satok was given a drug test prior to starting at a new truck driving job in Canada.

However, she was denied the job upon failing the drug test after testing positive for marijuana, despite the fact that she stated that the drug was for medical use. A urine drug test could return a positive result for drug use within the last 10 days to 3 weeks, so a positive result is not necessarily an indicator of impairment. Satok filed a discrimination claim against the company with the Canadian Human Rights Commission. Cases of this nature can be expected to rise as the use of medical marijuana rises, at least until laws are clarified. Using an oral fluid drug test might be of use to companies as they try to match drug testing to impairment windows in an effort to comply with the new reality of medical marijuana since oral fluid testing will detect only about a 24 hour window of use.

Outlook for Employers

As medical marijuana becomes increasingly common in the workplace it is anticipated that it may no longer be possible for employers to enforce zero-tolerance policies for either possession or use. In the meantime, employers should begin developing effective policies that can handle the complex situations of medical marijuana use.

Note that state and provincial laws and regulations differ and are subject to change. The best thing employers can do is to get informed about their rights and responsibilities and the rights and responsibilities of their employees. Employers should also include guidelines on the use of marijuana for medical purposes in their drug and alcohol policy.