In this case, it was determined that medical information on strain potency and frequency of use was reasonable information requested by the employer in order to assess fitness for duty for a safety-sensitive employee with a cannabis prescription.
Danyluk was a long-service journeyman welder employed at the Colonsay potash mine site. He obtained a prescription for medical marijuana under the Access to Cannabis for Medical Purposes Regulations (ACMPR). Danyluk disclosed his prescription to the employer and explained that his medical cannabis was not used in the workplace but in the evenings, away from work.
Danyluk was suspended with pay due to a breach of the company’s Drug & Alcohol policy, Fitness For Duty Policy and the Mines Regulations 2003. The breach was a result of the prohibited nature of his current prescription. Danyluk filed a grievance and a complaint with the Saskatchewan Human Rights Commission.
The employer requested disclosure of all medical records, including Danyluk’s:
- Application for medical marijuana authorization and the authorization that received,
- Records demonstrating quantities and strains of marijuana purchased and when,
- All documentation from the medical practitioners’ files on his medical conditions treated by medical marijuana and treatment proposed or undertaken.
The Union was opposed to providing this documentation and felt the employer was on a “fishing expedition.”
The two main questions at hand in this matter were:
- Should Danyluk’s application for medical marijuana authorization be produced?
- Should Danyluk’s medical records pertaining to the conditions treated by medical marijuana, and the treatment proposed or undertaken, be produced?
The employer asserted “without access to all of this information it cannot assess whether marijuana is an appropriate treatment, whether a more appropriate treatment is available, and whether the Grievor is fit to work in a safety-sensitive position while under the influence of marijuana.”
It was ruled that the employer was not permitted to Danyluk’s complete medical diagnosis. They were permitted to information relating to fitness for duty such as treatment options, strain potency, the frequency of use, alternative treatments appropriate and/or recommended by the physician.
Lessons learned:
- Employers are not entitled to receive medical records regarding medical diagnoses.
- Employers are not entitled to an employee’s authorization for medical marijuana where this contains sensitive information about the underlying medical condition.
- The employer, in this case, was granted access to strain potency, frequency of use of medical marijuana and alternate treatment options.
