Redress Risk Management (post until May 31/19)
Employment & Labour

Employees do not have absolute right to use medical marijuana at work

By Laura Williams

As many employers are aware, the use of medical marijuana in the workplace must be treated as an accommodation issue in the same manner that employers treat the use of any other potentially intoxicating but legally-prescribed medication.

Although the use of recreational marijuana will be legalized across Canada in 2018, marijuana use for medicinal purposes will continue to be permitted and employers’ related obligations will persist even after the legalization of recreational marijuana.

The Human Rights Code (the Code) requires employers to accommodate employees with disabilities, including those that require treatment by medical marijuana.

However, employees do not have an absolute right to a particular form of accommodation and are not entitled to a form of accommodation that causes the employer undue hardship. In a 2018 decision by the Human Rights Tribunal of Ontario (the HRTO), the HRTO confirmed that workers do not have an absolute right to use medical marijuana at work.

The facts

The applicant was employed as a seasonal painter for the respondent, a commercial contractor. He worked on the exterior of the 37th floor of a high-rise building. He had a valid prescription to use medical marijuana to treat chronic pain resulting from a degenerative disc disease. He often smoked marijuana on his breaks to manage his pain, but he did so without his employer’s knowledge or permission.

One day his supervisor caught him smoking marijuana on a swing stage suspended 37 floors above the ground and sent him home for violating their zero-tolerance policy on drugs and alcohol (the policy), with which the applicant was familiar.

The policy prohibited the use of legal or illegal drugs, alcohol, and prescriptions that could cause impairment while working, due to the safety-sensitive nature of the work. The applicant had not requested his employer to accommodate his use of medicinal marijuana.

Later that day, the owner of the company terminated the applicant’s employment for breaching the policy, despite his assertion that “it was his right to smoke medical marijuana at work.”

Consequently, the applicant filed an application with the HRTO claiming that the respondent breached its duty to accommodate his use of medical marijuana and had discriminated against him on the basis of disability by terminating his employment.

Applicants dismissal was not discriminatory

The HRTO found that the respondent had not breached its duty to accommodate the applicant, nor engaged in discrimination contrary to the Code, and accordingly dismissed his application.

Although the HRTO found that the applicant’s degenerative disc condition constituted a disability, which is a protected ground under the Code, he had not asked the employer to accommodate his use of medical marijuana.

The HRTO noted that it is difficult to conclude that an employer has failed to accommodate a request that was never made.

Furthermore, the HRTO stated that even if he had requested accommodation, the applicant’s use of medical marijuana would have imposed undue hardship upon the respondent due to the safety-sensitive context of the work. This is because allowing a worker to be impaired in this worksite would have presented serious risks to the health and safety of the workers, as well as to the public 37 stories below.

The HRTO also considered that there was no evidence that the applicant suffered from an addiction to marijuana; that his doctor was not aware of the nature of the safety-sensitive nature of his work and “would never have authorized the applicant to medicate at work in these circumstances”; that the policy was not, on its face, discriminatory because it was legitimately created to ensure health and safety at work and provided some flexibility for accommodation; and that the applicant breached the policy before the employer became aware of any accommodation needs.

The HRTO concluded that the applicant’s disability was not a factor in his dismissal and the termination of his employment for breaching the policy, therefore, did not constitute discrimination under the Code. The HRTO also concluded more broadly that the applicant did not have an absolute right to smoke marijuana at work, regardless of whether it was for medicinal purposes.

Implications

The decision demonstrates that employees’ right to reasonable accommodation at work has limits, and employees do not have an absolute right to use marijuana for medicinal purposes at work.

Employers are only required to provide employees with accommodation up to the point of undue hardship, even where they have a valid medical marijuana prescription. Therefore, employers will often not be obliged to allow employees to use medical marijuana while working in safety-sensitive workplaces and may rely on a drug and alcohol policy in addressing unauthorized use.

Nevertheless, employers should carefully consider each request for accommodation on a case-by-case basis to determine how accommodation may be provided to comply with their obligations under the Code, particularly given that the use of medical marijuana at work may be considered a reasonable accommodation in less safety-sensitive contexts.

Furthermore, employers should review their policies regarding drugs and alcohol to ensure that its prohibition extends to legal but intoxicating medications. Based on this decision, employers may also want to revise such policies to be clear that the use of legal but impairing substances do not result in automatic termination in order to reduce the likelihood of a finding that the policies themselves are discriminatory.

The decision must also be considered in light of the impending legalization of recreational marijuana. Although employers will not be required to tolerate employee use of or impairment by recreational marijuana at work – Ontario’s Cannabis Act in fact expressly prohibits its use at work – the accommodation of medical marijuana use will continue to be a significant workplace issue.

Employees will continue to have the right to accommodation in relation to legitimate medical use, up to the point of undue hardship. Once recreational marijuana is legal later this year, employers will need to be even more careful to differentiate between employee use for medical and recreational reasons.

Although discipline or dismissal for the latter will often be appropriate, the same response by an employer to medical use will in some cases be considered discriminatory – though not in all cases, as demonstrated by the recent decision.

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