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No obligation to let employee smoke marijuana at work as a form of accommodation

medical-marijuana2The British Columbia Human Rights Tribunal, in French v Selkin Logging, found that an employer did not discriminate based on the ground of physical disability by refusing to allow the employee from smoking marijuana at work. The company’s zero-tolerance policy for drugs constituted a bona fide occupational requirement (BFOR).

What happened?

Selkin Logging Ltd. is a logging contractor and its offices are located on a First Nations reserve. It has 22 to 25 logging employees. John French was employed by Selkin Logging from late June 2013 to mid-February 2014. During his employment, he was diagnosed with a recurrence of cancer.

At the human rights hearing, French claimed that Selkin Logging discriminated against him in the area of employment, on the ground of physical disability, contrary to the Human Rights Code. He argued that Selkin Logging prevented him from taking time off to attend medical appointments, and later terminated him when it should have accommodated his marijuana smoking on the job.

On the other hand, Selkin Logging denied any discrimination contrary to the Code. It insisted that it never prevented French from attending any medical appointments. Additionally, it had a policy against drugs at the workplace. Selkin Logging claimed that French never had an authorization to possess marijuana in the form of a “marijuana card”.

Furthermore, the company argued that French quit – he was never terminated. It also maintains that if French could establish a prima facie case of discrimination, it met the bona fide occupational requirement test because French should not be at work under the influence of a drug, and it could not accommodate him when safety was at stake.

After sifting through the evidence, the Tribunal clarified some details that were in dispute. For instance, out of the nine appointments French claimed to have missed because Selkin Logging would not allow him to attend, he only missed two, and there was ambiguity in the evidence about whether one of these appointments was actually missed. Also, although French initially denied this, there was indeed evidence that French smoked marijuana at work. He and a co-worker shared six to eight joints during their workday during coffee and lunch breaks – he finally admitted at the hearing that he was a chronic user for more than 20 years, and others at the workplace witnessed it.

Also contrary to what French argued, he was never told by his doctors to smoke marijuana and he was not prescribed marijuana item. He claimed he was just following doctor’s orders, but he had no authorization to possess marijuana for medical reasons. A doctor may have said it was acceptable to use it for pain if it worked. No one told him that it was okay to smoke the drug at work. Although French claimed that the marijuana did not affect him, there was no way of knowing the degree of impairment he experienced while smoking marijuana at work.

The evidence also suggested that French told his supervisor on February 12, 2014 that he had been smoking drugs on the jobsite and had no intention of quitting. When the supervisor pointed out the rules that there could be no drug impairments at work because there was a zero-tolerance policy, French exclaimed that he quit. The supervisor gave him time to sleep on it. That evening, French sent a text saying that he would be going to the doctor and would see him later. But then he requested his paycheque early – Selkin Logging summarized these events on February 13, 2014 in a letter claiming that the company assumed that he terminated his employment. The company thanked him and wished him every success in his career – but if this information was incorrect, he was to feel free to advise the company by the end of the day if he wanted to return.

Moreover, although French claimed that he contacted the company to say he did not quit, there was no evidence that he actually made any contact. Rather, French made arrangements to get his final paycheque on February 16, 2014.

Decision

The Tribunal had to decide whether there was discrimination based on disability regarding the medical appointments and the marijuana smoking.

First, there was no discrimination regarding the medical appointments. The overwhelming evidence was that French did in fact take time off while employed to attend his medical appointments. Although he missed two appointments, this was not because Selkin Logging prevented him from going – therefore, there could be no discrimination on the ground of disability.

Second, French was able to show there was prima facie discrimination regarding the marijuana. This was because French was disabled and used marijuana to manage pain resulting from his disability, and he was expressly terminated for using marijuana.

However, the zero-tolerance policy for safety reasons constituted a bona fide occupational requirement (BFOR). In applying the Meiorin test, the Tribunal swiftly found that the first two steps were met because the purpose of the zero-tolerance policy was safety and this was clearly rationally connected to the performance of the job (operating heavy equipment in the logging industry). Regarding the third step of the test, there was no evidence presented that French’s ability to work safely was actually impaired or that he endangered himself or anyone else. This did not make the policy unreasonable – it was certainly not outside the scope of an employer’s legitimate management rights to make this policy.

Although accommodation considerations could influence whether there should be a strict application of the policy, in this case, French was not legitimately allowed to possess marijuana and he never informed the company that he was using a potentially impairing substance at work. It was incumbent upon French to obtain the necessary legal and medical authorization to obtain and use marijuana for medical purposes and to inform Selkin Logging about his needs. He did not do so – when he was confronted by the supervisor he claimed that he was trying to manage pain because he had cancer – this was not an adequate explanation. This was an accommodation which the company could not properly abet in the circumstances, and would amount to undue hardship. Thus, there was no discrimination based on disability.

This meant that the termination of employment was also not a contravention of the Code. While French was expressly terminated for using marijuana contrary to the policy, it was clear that the policy constituted a BFOR.

Since Selkin Logging did not discriminate against French regarding the medical appointments or the marijuana use, and the termination did not contravene the Code, the complaint was dismissed.

What can employers take from this case?

As can be seen in this case, the Tribunal always sifts through the evidence to determine what really happened when there are credibility issues.

Moreover, employers can see from this case that it is extremely important to document each time an accommodation is made, and this includes the times there are appointments and the employer responses.

Further, employers are recommended to have in place human rights policies that explaining the accommodation procedure in the workplace. For example, the policy should explain that employees have responsibilities too, namely communicating what they need in order to be enabled to continue working. In this case, French should have come forward much earlier explaining the situation and providing information concerning what he needed to be able to continue working. He should have obtained the necessary authorizations and properly informed the company about this.

Lastly, employers who have zero-tolerance policies because of legitimate safety reasons can rest assured that creating this type of policy is within their management rights, that but they must be aware of the fact that these policies may need to be flexible where the duty to accommodate is triggered. This case could have gone differently had French approached Selkin Logging with an authorization to use medical marijuana. There might have been some detailed discussions about what was required to ensure the safety of the workers in the workplace while still meeting French’s needs.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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