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Is the WCB disclosing a cannabis prescription a rights breach?

THE QUESTION

I was injured at work and my pain doctor "prescribed" medical cannabis. During that time I was still off work at home with no set return date. There was no need to inform my employer until a return-to-work date was set. My Workers Compensation Board case worker met with my employer and informed them I was "treating" my symptoms with cannabis. My employer decided at that time they could not accommodate me. Does this sound like a huge confidentiality breach?

THE FIRST ANSWER

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Lorelle Binnion

Associate, Borden Ladner Gervais, Calgary office

Employers are responsible for ensuring that an employee returning to work after an injury is able to do so safely, which requires the employer to be aware of the employee's medical limitations. However, it does sound like your privacy rights may have been breached in this situation, since generally your employer is only entitled to know the potential side effects of any medications you are taking, not the names of the medications.

Medical cannabis should be treated no differently than other prescription medications in this sense. Further, your employer should normally provide you with notice or seek your consent before collecting personal information about you.

Equally concerning, however, is your employer's failure to accommodate your return to work, seemingly based on the fact that you are using medical cannabis to treat your pain.

The law concerning accommodation involving medical cannabis use is still developing in Canada; nonetheless the duty to accommodate does apply. Legally, employers are required to accommodate an employee's physical disability, such as your workplace injury, to the point of undue hardship. The "undue hardship" test is difficult to meet and will not be met simply because you are using medical cannabis. Your employer should have determined what your actual limitations are, and then assessed whether those limitations could be accommodated.

At this point, your best course of action is likely to get in touch with an employment lawyer to canvas the possibility of making a complaint to the privacy commissioner, or of bringing a human-rights complaint or a wrongful dismissal action against your former employer.

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THE SECOND ANSWER

Kyle Couch

President & CEO, Spectrum Organizational Development Inc., Toronto

Despite any company's best health and safety efforts, accidents do happen and employees get hurt. It is very unfortunate that you were hurt; however, there are certain limitations to what you can expect from your health-care provider, the Workers Compensation Board (WCB) and your employer.

In most cases, your medical records are a private matter; however, through the Workplace Safety and Insurance Act, the WCB can access your medical records, without your consent, as they relate to your current situation, to ensure your treatment plan follows their guidelines and provide your employer with appropriate updates on your recovery.

While cannabis is currently available to patients in Canada who qualify, it is not currently covered under many WCB coverage programs. Even though your health-care provider issued you a prescription, it likely did not meet your WCB's treatment guidelines and in turn your employer does not have to accommodate your leave based on this treatment option.

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If cannabis is the only pain-management option that works for you, you can certainly continue to utilize it; however, you no longer qualify for covered short– or long-term disability.

Got a burning issue at work? Need help navigating that mine field? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com

Video: Talking Management: Why workplace factors can have a psychological impact on mothers returning to work (Special to Globe and Mail Update)
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