Arial 11pt - ONA



To:Bargaining Unit Presidents25971501397000From:Vicki McKenna, RN, President Date:June 22, 2018Re:Cannabis – A Background Paper (Internal Use Only)C:Board of Directors, Local Coordinators, District Service Teams, Negotiations Team, Litigation Team, Provincial Services Team, Membership Education and Events Team, Strategy Team, Communications and Government Relations TeamCurrently in Canada, it is only legal for individuals to obtain and consume cannabis for medical purposes. This will change as of October 17, 2018, at which time new federal legislation governing cannabis use in Canada will take effect. As of that date, both medical and recreational cannabis use will be legalized, subject to restrictions set out in Bill C-45: An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code, and other Acts (Bill C-45).This background paper is intended to provide background on the impending cannabis legalization and an overview of some issues ONA’s members may encounter as the new legislation comes into effect, specifically with respect to the following issues:Legislative overview:Current landscape.Changes at the federal level.Changes at the provincial level.Caring for patients who are authorized to use cannabis for medical purposes.Labour relations implications of cannabis use and the workplace:Medical use.Recreational use outside of work. Coverage of medical cannabis in health and welfare benefit plans.Disclosure of cannabis use to an employer.Legislative overviewCurrent landscapeAs of the writing of this paper, cannabis for non-medical purposes remains illegal pursuant to the Controlled Drug and Substance Act. The production and sale of medical cannabis is controlled under the Access to Cannabis for Medical Purposes Regulations (ACMPR). The ACMPR allows for reasonable access to cannabis for medical purposes for persons who have been authorized to use cannabis for medical purposes by an authorized health-care practitioner. To obtain medical cannabis, an individual must be evaluated by and receive medical documentation from a physician or nurse practitioner. The individual applies to register with Health Canada and will receive a registration certificate from Health Canada, which grants legal authority to use cannabis for medical purposes. Under the ACMPR, individuals who need access to cannabis for medical purposes may access cannabis in three ways: 1) by registering with a licensed producers; 2) registering with Health Canada to produce a limited amount of cannabis for their own medical purposes; or 3) designating someone to produce it for them. No matter how individuals obtain cannabis for medical purposes, their possession limit is the lesser of a 30-day supply or 150 grams of dried marijuana or the equivalent amount if in another form.Changes at the federal level On October 17, 2018, new federal legislation governing cannabis use in Canada is scheduled to take effect. As of that date, both medical and recreational cannabis use will be legalized, subject to restrictions set out in Bill C-45.Bill C-45 has been passed by the House of Commons and is now before the Senate. The deadline for the Senate to pass the legislation, as agreed upon by Senate leaders and the government is June 7, 2018.Under the new system, individuals 18 years or older will be able to: Possess up to 30 grams of dried cannabis or equivalent in non-dried form for personal use.Share up to 30 grams of legal cannabis with other adults.Purchase dried or fresh cannabis oil from a provincially-licensed retailer. Grow up to four plants per residence, provided they are not more than one meter high (from licensed seeds).Make cannabis products, such as food and drinks, at home (provided that organic solvents are not used).The government also proposed new legislation governing impaired driving that would make it illegal to drive within two hours if an illegal level of drugs is found in the blood. Police will be given authority to administer a saliva test for cannabis if a driver shows signs of use, including the smell of cannabis or reddened eyes. Once the officer has reasonable grounds to believe an offence has been committed (such as a positive saliva test), they could demand a drug evaluation by an evaluating officer or a blood sample.Changes at the provincial level In anticipation of the legalization of cannabis, the Ontario government passed the Cannabis Act which governs the sale, distribution, possession, cultivating, propagation and harvesting of cannabis. The Cannabis Act prohibits persons under 19 years of age from possessing, consuming, purchasing or attempting to purchase, distributing, cultivating, propagating or harvesting cannabis (or offering to cultivate, propagate or harvest it). Additionally, only Ontario retailers can sell or distribute cannabis. The Cannabis Act establishes limitations on where cannabis may be consumed. Specifically, it states that no person shall consume cannabis in:a public place;a workplace within the meaning of the Occupational Health and Safety Act;a vehicle or boat; or any prescribed place.Medical cannabis users, however, may consume cannabis for medical purposes in one of the above-noted locations subject to some limitations (i.e. Smoke-Free Ontario Act, 2017).Caring for patients who are authorized to use cannabis for medical purposesThe Section 56 class exemption of the Controlled Drug and Substances Act (CDSA) authorizes hospital employees (including nurses) to directly administer medical cannabis to patients with authorization to use it as per the ACMPR. The definition of a “hospital” according to the Narcotic Control Regulations includes licensed nursing homes and residential or long-term care facilities. However, at this time, the Section 56 exemption of the CDSA does not apply to nurses working in home-care settings. Therefore, at this time, nurses working in home-care settings are not authorized to directly administer medical cannabis to clients. They are, however, authorized to assist a client who has been authorized to use medical cannabis. It is important to note, however, that “assist” is not defined in the legislation and it is difficult to determine how it differs from “administer.”The ACMPR indicates that if a person other than a physician or a nurse practitioner (NP) is providing assistance in the administration of the substance to someone who is authorized to use it, that person may possess a limited quantity of the authorized user’s substance for the purpose of providing the assistance, while in the authorized user’s presence. These limitations include: In the case of fresh/dried marijuana or cannabis oil, the daily quantity of dried marijuana that the health-care practitioner authorizes for the person; orIn the case of a product resulting from an alteration of fresh or dried marijuana or cannabis oil, 5 g of dried marijuana.When administering any medication to clients, members are accountable for adhering to their regulatory bodies’ practice standards and legislation. Members must ensure that they are able to administer medication safely (e.g. labels clearly set out the contents and the dosage) and competently, and manage the potential outcomes of administering it in accordance with the College of Nurses of Ontario (CNO) Practice Standard - Medication. Occupational health and safety legislation requires employers to provide a safe work environment and take all reasonable precautions to protect the health and safety of employees and others in the workplace. It is necessary for employers to work with the Health and Safety Committee to create a policy that protects nurses from workplace hazards (i.e. passive inhalation resulting in adverse health effects or some level of impairment, positive drug test results or other occupational illness or symptoms due to exposure). Legal impact of cannabis use by an employee and the workplace With the legislation changing, case law in this area is continuing to evolve. Members must ensure that they review regulatory bodies’ practice standards, guidelines and legislation. If a member is concerned that their cannabis use is affecting their ability to provide safe patient care, they should consider taking a sick leave and return only when cleared to do so by the treating physician. Medical purposes In the workplace, an employee bears the onus of establishing they have a medical need to use cannabis for reasons related to a disability as defined under the Human Rights Code. In other words, use must be because of a disability in order to trigger the employer’s duty to accommodate. The best way to demonstrate that an employee’s use of cannabis is for medical purposes is through the requisite documentation, including a medical prescription and registration with Health Canada. In some cases where an employee uses cannabis to relieve symptoms of a disability, but does not have authorization pursuant to the applicable regulations, terminations have been upheld.In safety-sensitive positions, employees have tended to be more successful where the individual can show they were: a) taking low daily doses of medical cannabis; b) outside of the workplace; c) outside of working hours or not immediately before work; and d) no work incidents or safety issues have arisen from use.Where an employer becomes aware that an employee is using medical cannabis, the employer has a duty to accommodate the employee to the point of undue hardship. Balanced against the duty to accommodate is the employer’s responsibility to take all reasonable precautions to ensure that workers and patients are safe. Even in cases where the employer has a zero-tolerance drug policy in effect, an employer should be prepared to permit exceptions to this rule where an employee requires medical cannabis for reasons related to a disability, particularly where safety concerns can be effectively managed.Recreational purposes outside of work hours Arbitrators appear to be trying to balance the employer’s concern for health and safety in the workplace with the employee’s right to be judged fairly based on whether their off-duty conduct impacts workplace safety. A positive test for cannabis, without evidence of actual use or impairment while working, is generally not sufficient to justify a termination or in some cases any discipline. This appears to be the case even in safety-sensitive workplaces or where the employer has a zero-tolerance drug policy in place.Cases that involved dismissals being upheld generally involved an employee who used cannabis while on the job and where the employer has a clear drug policy in place, where the workplace is safety sensitive and/or where the employee failed to take responsibility for her/his actions.Where an employee establishes she or he has a drug addiction related to cannabis, the duty to accommodate on the basis of disability up to the point of undue hardship is also triggered. Again, this must be balanced against any objective and demonstrable risks. Drug plans – coverage for medical cannabis Currently, it appears that most benefits programs do not offer coverage for medical cannabis. Employers generally claim the following reasons for not providing coverage: 1) medical cannabis is not an approved drug under the Food and Drugs Act; and 2) it does not have an assigned Drug Identification Number (DIN).It is ONA’s position that these administrative issues should not be a basis for denying coverage where cannabis is medically prescribed and required. This was confirmed in Skinner v Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (2017), where the Nova Scotia Human Rights Commission held that if an employee has a diagnosed medical condition and is prescribed medical cannabis, it should be covered by the insurance provider (unless providing such coverage would cause undue hardship).Disclosure There is no mandatory duty in the Regulated Health Professions Act that requires a health-care professional to self-report cannabis use to an employer. The issue of whether to report this information must be approached on a case-by-case basis as the use of marijuana for medical purposes would also be considered personal health information like the use of other medications that are prescribed. Such privacy rights must be balanced against the need to ensure patient safety. If an individual is concerned that their substance use is affecting their ability to provide safe patient care, it is essential that the individual go off on sick leave and return only when cleared to do so by a physician or addiction specialist. There is no obligation to report oneself to the CNO and ONA discourages members from doing so.Conclusion With new legislation regarding the legalization of cannabis coming into effect, case law in this area is still developing. This background paper was intended to provide an overview of the issues that may be encountered as the new legislative comes into effect. ONA members must ensure they stay up to date on laws affecting their scope of practice and any permissions or restrictions their regulatory body or employer may implement. ................
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