We recently looked at the case of Brendan Uprichard, who was fired after failing to tell his employer he was a medical cannabis user. That case highlighted the requirement of employees who hold a safety-sensitive role to disclose their cannabis use. However, it also highlighted a number of the flaws with the disclosure process.
Preferably, we would have a system where employees could be upfront with employers about their medical cannabis prescription even during the hiring process. Employees would disclose use and an assessment would be made if accommodation were needed or not.
Sadly, this seems almost idealistic given how disclosure is typically managed today. One thing I'm sure of - it would be more effective than how this unfolds in reality.
Instead of disclosing, employees keep their cannabis use secret for fear they won't be hired at all. The other option is they'll go through a lengthy accommodation process only to be placed in a lesser role where they have reduced earning power.
So what happens? Employees play the system. They reduce their cannabis consumption long enough to pass the drug test. They don't disclose. They get the job and then start to consume again.
If the employer has a strong drug policy and the employee is aware that breaching the policy could lead to termination, they may disclose.
Then what? Well, we're back at the beginning. Here are the options.
The first one: the employee gets fired. This is not appropriate, by the way. The courts have been clear that employers have a duty to accommodate medical cannabis to the point of undue hardship. But it still happens.
The second option: The employee is assessed for accommodation, which has many possible outcomes:
- Without thorough investigation, the employer believes the employee will be impaired while on shift (when this may not be the case) and moves them into a lesser, non-safety sensitive role.
- Through assessment, it is determined the employee will not be impaired while on shift and they are allowed to keep their safety sensitive position.
- Through assessment, it is determined the employee will in fact be impaired while on shift and the employee is appropriately accommodated into a non-safety sensitive position.
- The employment relationship is terminated because the undue hardship threshold has been met.
Option one is the route I fear employers are going down. This is a uniform path that perpetuates employee fear and leads to the unjustified loss of income.
The other options are fair possibilities but nevertheless scary for employees. There is a significant fear of the repercussions of disclosure including loss of income altogether, reduced earning power and being stigmatized as a hippie-stoner.
Most dangerously of all, this culture perpetuates the risk that cannabis use goes undisclosed and employees maintain safety-sensitive positions when they may be impaired.
When we approach this in what is perceived by employees as a punitive manner, we create a vicious cycle of fear of disclosure.
As it stands today, employee's will chose income over disclosure - because disclosure is broken.
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