The Age Requirements for Working at a Dispensary
In Canada, it is important to understand the legal requirements for working at a dispensary. Depending on the province or territory, you must be of age in order to legally work in a cannabis dispensary— typically 18 or 19 years old. This requirement applies regardless of whether you are working front-of-house as a budtender or behind the scenes in other roles such as administration and security. It is also important to research the specific regulations set by each individual jurisdiction when considering employment opportunities in cannabis dispensaries.
What is the legal status of marijuana in canada right now?
On October 17, 2018, the Canadian government legalized recreational marijuana use. The production and sale of edible cannabis and cannabis extracts were legalized a year later, in October 2019.
Does the legalization of marijuana impact employees at work?
No. Employers have the right to establish rules for non-medical marijuana use in the workplace in the same way that they do for alcohol use. Employers, in particular, may prohibit employees from using marijuana at work or during working hours, as well as from reporting to work while impaired. Workplace rules regarding non-medical marijuana use may be enforced using the employer's progressive discipline policy.
Applies the duty to accommodate to medical marijuana?
Yes. Disabled employees who use medical marijuana are subject to the duty to accommodate imposed by provincial and federal human rights legislation. These employees must be accommodated in the same way that any other disabled employee who has been prescribed medication is. Employees who may have an addiction disability must also be accommodated. However, the duty to accommodate has limitations.
What extends the duty to accommodate employees using medical marijuana?
Human rights legislation requires employers to accommodate disabled employees. What exactly does this mean in terms of medical marijuana?
- A medical marijuana prescription does not give an employee the right to be impaired at work.
- A medical marijuana prescription does not entitle an employee to jeopardize his or her own or others' safety.
- A medical marijuana prescription does not entitle an employee to smoke in the workplace.
- A medical marijuana prescription does not entitle an employee to unexplained absences or late arrivals.
- However, the employer is required to make every effort to find suitable workplace accommodations for disabled employees who have a prescription for medical marijuana use, just as any other disabled employee with a medical drug prescription is.
What can employers do to fulfill theirs obligates?
Employers may need to revisit workplace drug and alcohol policies, bearing in mind two competing obligations: on the one hand, employers have a duty to accommodate disabled employees, and medical marijuana is used to treat medical conditions that can constitute a "disability." Employers, on the other hand, must take every reasonable precaution to ensure the safety of their workplaces and retain the right to prohibit impairment on the job. As testing for drug and alcohol use remains one of the most contentious contemporary issues in Canadian workplace law, assessing impairment at work may prove to be the most difficult aspect of designing and implementing marijuana policies.
Employers who receive an accommodation request may want to consider providing similar accommodations to other disabled employees. These measures may include transferring the employee out of a hazardous position, providing more frequent breaks, implementing alternative scheduling, or changing the employee's duties, among others. Where there are questions about the employee's fitness for duty and what will be appropriate accommodation, an employer may wish to request medical information from the employee's doctor or seek the assistance of an independent medical examiner, as with other accommodated employees.
Three marijuana-related cases shed light on how employers should strike the appropriate balance between these competing obligations.
The complainant, a cancer survivor, smoked marijuana several times during the workday to manage chronic joint pain in French v. Selkin Lodging, 2015 BCHRT 101. Despite the fact that a doctor had told the complainant that he could use marijuana if it worked, the complainant lacked formal documentation allowing him to lawfully possess and use marijuana for medical purposes. Due to safety concerns, the employer informed the complainant that he would be unable to continue working if he continued to smoke at work.
Although there was no evidence that the complainant's marijuana use had ever affected his performance, the British Columbia Human Rights Tribunal determined that the employer's "zero-tolerance policy" was a legitimate occupational requirement. The Tribunal determined that the termination was not discriminatory.
In Calgary (City) v. Canadian Union of Public Employees, 2015 CanLII 61756, an Alberta arbitration board reached the opposite conclusion (AB GAA). In this instance, the grievor was in charge of operating a grader on city streets. To relieve the pain caused by a back injury, he obtained a medical marijuana permit and began using small amounts before going to bed. Following an Independent Medical Examination ("IME"), the employer determined that the grievor could no longer work in a safety-sensitive position.
The arbitration board determined that the IME was based on inaccurate information provided by the employer. Most notably, no evidence of substance abuse or impairment at work was found. As a result, the employer was ordered to reinstate the grievor to his former position.
In M v. V Gymnastics Club, 2016 BCHRT 169, a gymnastics coach claimed that her employer discriminated against her based on physical and mental disability by suspending her employment after she disclosed that she used medical marijuana to manage the symptoms of her gastric conditions. The complainant stated that she was never "stoned" at work and that her marijuana use had no discernible impact on her performance. The employer claimed it had the right to demand complete abstinence from marijuana use, both at work and away from work. It described the position of the gymnastics coach as safety-sensitive, stating that gymnastics poses a very real risk of injury and that the majority of the people with whom the complainant worked were children under the age of 19.
The British Columbia Human Rights Tribunal, refused to dismiss the complaint on preliminary grounds, concluding that a full hearing was required to determine whether the position of gymnastics coach was a safety-sensitive position and whether the complainant had been accommodated to the point of undue hardship.
Employers may wish to seek legal advice on whether – and how – to accommodate an employee who has been prescribed medical marijuana in light of conflicting case law.
Conclusion:
From the cases discussed above, it is clear that employers must carefully consider their obligations to accommodate employees who are prescribed medical marijuana. While an employer may have a legitimate occupational requirement for prohibiting marijuana use in certain circumstances, this decision must be based on current information and free from discrimination. Employers should seek legal advice on how best to strike a balance between accommodating employees while ensuring safety and productivity in the workplace.