Michael Ford (post until Oct. 31/19)
Employment & Labour

No absolute right to smoke medical pot on the job

A recent human rights ruling shows there are limits on an employee’s right to smoke medical marijuana on the job, Vaughan labour and employment lawyer Arthur Zeilikman tells AdvocateDaily.com.

In the decision, an adjudicator for the Human Rights Tribunal of Ontario (HRTO) found that an employer had not discriminated against the employee — a seasonal painter whose work required him to work on a swing stage 37 floors up — when he was terminated for smoking marijuana while at work in violation of its zero-tolerance policy.

Zeilikman, principal of Zeilikman Law, explains that under the Human Rights Code, employers have a duty to accommodate their workers to the point of undue hardship.

“Although a blanket policy is problematic, this case shows that you may be able to justify a zero-tolerance policy in some circumstances,” he says. “The tribunal didn’t interpret this as one that was preventing proper accommodation.”

According to Zeilikman, the context of a particular example will be critical to the HRTO’s ruling. In this case, he says an important factor was the safety-sensitive nature of the worker’s job, which impacted on the welfare not only of himself but of his colleagues and the general public.

The man in the most recent case smoked marijuana at work due to a chronic pain disorder but would do so on breaks while suspended many floors up on the swing stage. He claimed it would take too long to go down and then return to his position.

He was sent home one day in the summer of 2015 after a supervisor spotted him consuming the drug on the swing stage without a hard hat or tether. He was later terminated for his violation of the company’s zero-tolerance policy regarding the use of intoxicating drugs and alcohol.  

The HRTO adjudicator ultimately ruled in the employer’s favour after finding there was no evidence the worker had ever requested accommodation for his medical marijuana use.

“The applicant does not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes,” the adjudicator wrote, adding that his procedural rights had not been breached by the employer’s failure to consider accommodation options before firing him.

“After hearing all of the evidence, I am satisfied that the applicant, through his own actions, provided the respondent grounds to terminate his employment,” he wrote. “There is no evidence to support his claim that the respondent’s actions were discriminatory in any way.”

Zeilikman says the case should serve as a reminder to employees that accommodation “is a two-way street.”

“Generally speaking, the employee has an obligation to co-operate and collaborate in the process of accommodation by furnishing sufficient medical information to allow the employer to implement changes that would fully integrate the person into the workplace,” he says.

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