by Cory Sully
While access to medical marijuana has increased in Canada over the last few years, the consumption of medical marijuana has arguably become less taboo with the new Trudeau government’s pledge to eventually legalize and regulate this substance.
In the summer of 2016, the government made the Access to Cannabis for Medical Purposes Regulations (ACMPR), which allows individuals to legally consume marijuana for medical purposes if they meet certain criteria. The ACMPR is designed to allow individuals to access and use marijuana, notably by producing their own cannabis or designating someone to do so for them.
The use of marijuana in the workplace has since attracted more attention in Canada. A recent human rights case suggests that a government issued “Authorization to Possess” medical marijuana may trigger an employer’s duty to inquire whether the employee has an underlying disability requiring accommodation.
In Brown2016 BCHRT 170, the employee was an ironworker employed by HB Construction Company Ltd., which had been subcontracted by a third-party contractor on a large-scale construction project. Prior to starting work on the project site, the employee underwent a drug and alcohol test conducted by a third party. He also received training on medication use in the workplace, and he was told that illegal substances were banned in the workplace.
As it turns out, the employee consumed marijuana on a daily basis to treat his chronic back pain. He had an Authorization to Possess Marijuana for medical purposes, which he presented to the third party that conducted his pre-employment drug and alcohol screening. He was told that they would pass it on to HB. The employee was ultimately hired, but he did not tell HB about his medical marijuana use during his orientation.
One month later, the employee was confronted by an HB supervisor who found him smoking marijuana in the parking area. The employee showed the supervisor his Authorization to Possess. Shortly after, HB terminated the employee’s employment for consuming marijuana on site and for failing to disclose his marijuana use to HB.
The employee filed a human rights complaint against HB claiming discrimination on the basis of a disability. He also named the third-party contractor in his complaint, despite the fact that it was not his actual employer.
The contractor and HB both asked the British Columbia Human Rights Tribunal, as an interim measure, to dismiss the complaint.
The tribunal decision
In this preliminary application, the tribunal dismissed the complaint against the third-party contractor. However, the tribunal was not convinced that the employee’s complaint had “no reasonable prospect of success” against HB, and so it allowed the complaint to proceed against HB.
HB argued that it had not been told about the employee’s Authorization to Possess in the hiring process and that the employee had failed to disclose his disability or to request any accommodation. As a result, HB also denied that it had a duty to inquire about a possible disability and the need for accommodation. The tribunal was not convinced at this stage.
The tribunal explained that, at an eventual hearing, the employee would effectively have to prove that HB either knew about his disability or had an implicit duty to inquire about the reasons for his marijuana use before it terminated his employment. While not yet ruling on that point at this preliminary stage, the tribunal suggested that having knowledge that an employee is issued an Authorization to Possess may potentially trigger a duty to inquire as to whether it is linked to a disability.
The tribunal also noted that, for the employer to prove undue hardship, HB would have to present evidence that it took “all reasonable and practical steps” to accommodate the employee’s marijuana use, including considering alternatives to termination of his employment.
While the recreational use of marijuana remains illegal in Canada, the use of medical marijuana is allowed in certain limited circumstances. To minimize the risks of human rights issues, employers are well advised to do their due diligence when they learn an employee is using medical marijuana.
Employers should determine whether the employee is in legal possession of marijuana and whether he or she has an underlying disability that requires accommodation. Asking to obtain the registration certificate from Health Canada or the label on the package from the licensed marijuana producer is a good place to start.
Employers may also wish to follow up with relevant medical practitioners to better understand the impact of marijuana use in the workplace. Not all forms of marijuana products have the same effects, and the analysis of impairment or health and safety risks must be done on a case-by-case basis.
Of course, beyond the medically authorized uses of medical marijuana, employers must continue to keep in mind potential issues with respect to drug addiction, which may also trigger a duty to inquire.
In either case, employers will be required to consider potential accommodations to the point of undue hardship. Developing a clear policy regarding marijuana use in the workplace for both recreational and medical use (either a standalone policy or as part of a drug and alcohol policy) may well offer needed guidance to manage these often difficult situations.
Cory is an Associate in the firm’s Labour, Employment and Human Rights practice group. She advises both union and non-union employers on a wide range of labour and employment matters. Cory provides practical and strategic advice on the hiring and termination of employees, wrongful and constructive dismissal actions, collective agreement disputes and interpretation, the duty to accommodate, and bullying and harassment complaints. Cory also advises employers on compliance with employment standards, workers’ compensation, privacy and human rights legislation. She also regularly assists employers with drafting, reviewing and enforcing employment agreements, including agreements on post-employment competition. In addition, she has experience in drafting and reviewing workplace policies such as bullying and harassment policies, privacy policies, and drug and alcohol polices. Cory has appeared as counsel in settlement conferences and before the Provincial Court of British Columbia. In addition, she has assisted senior counsel in preparing for grievance arbitrations, human rights tribunal hearings, judicial reviews, and litigation at the B.C. Supreme Court and B.C. Court of Appeal.