The Tribunal’s helpful statement in this case that an employee does not have an absolute right to use marijuana in the workplace and that it would be unreasonable to expect an employer to formally test an employee to determine the level of impairment before it could raise health and safety concerns should provide employers with some reassurance.
The Federal Government is expected to legalize recreational marijuana before the end of this year’s summer season. Many employers are concerned about the impact of this legislative change on the health and safety of their workplaces. Concerned employers may find some solace knowing that the Ontario Human Rights Tribunal (the “Tribunal”) in Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238, recently found that an employer had not discriminated against an employee when it terminated his employment for smoking marijuana while at work. The Tribunal helpfully noted that employees do not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes.
The employment relationship
The employer, L&L Painting and Decorating Ltd. is a commercial contractor involved in the restoration of high-rise buildings (the “Respondent”). The applicant, Mr. Aitchison, had worked for the Respondent as a seasonal painter from 2011 until the termination of his employment in 2015. Part of his duties as a seasonal painter required him to perform work on a swing stage, suspended on the outside of a building, 37 floors above the ground.
Use of marijuana in the workplace
Mr. Aitchison suffered from a degenerative disc disease as a result of an accident that pre-dated his employment with the Respondent. To manage his chronic pain caused by the disease, Mr. Aitchison smoked marijuana while at work. Even when his duties required him to perform work on the 37th floor, he had continued to self-medicate on his breaks by smoking marijuana while sitting alone on the swing stage, suspended on the outside of the building. In his application to the Tribunal, Mr. Aitchison alleged that his supervisor had permitted him to smoke marijuana on his breaks, away from other crew members.
Yet, in June 2015, after observing Mr. Aitchison sitting alone on the swing stage, untethered, not wearing a hard hat and smoking marijuana, the supervisor contacted the company’s owner and, with his authorization, sent Mr. Aitchison home in accordance with the Respondent’s “zero tolerance” policy (the “Policy”). The Policy required an intoxicated worker to be removed from the jobsite.
When the Respondent asked Mr. Aitchison about the incident a few weeks later, Mr. Aitchison did not deny he had been smoking marijuana and asserted it was his right to do so while at work. The Respondent subsequently terminated Mr. Aitchison’s employment. During the hearing of the application, the owner identified the Policy and the health and safety concerns associated with allowing someone impaired on the jobsite as rationales for terminating Mr. Aitchison’s employment.
The tribunal’s ruling
The Tribunal dismissed Mr. Aitchison’s application and found Mr. Aitchison had provided the Respondent with grounds to terminate his employment through his own actions. The Tribunal found that there was no evidence to support his claim that the Respondent’s actions were discriminatory. The key points of the Tribunal’s analysis provide that:
- The Respondent did not fail to accommodate Mr. Aitchison. The Tribunal found that there was no evidence Mr. Aitchison requested an accommodation with respect to his use of marijuana while at work and rejected Mr. Aitchison’s claim that his supervisor had been aware of his use of marijuana and had condoned it. Instead, the Tribunal found Mr. Aitchison unilaterally decided to use marijuana at work without authorization from the Respondent or his treating physician. The Tribunal stated that the Respondent was not required to investigate the possibility of accommodation Mr. Aitchison after he had provided the grounds for his own termination.
- The Respondent did not discriminate against Mr. Aitchison when it terminated his employment for smoking marijuana at work. The Tribunal found that Mr. Aitchison did not have an absolute right to smoke marijuana regardless of whether it had been used for medicinal purposes. Mr. Aitchison unilaterally chose to smoke marijuana at work without authorization. Mr. Aitchison was dismissed for a serious health and safety violation and there was no evidence to support the claim that his disability was a factor in the Respondent’s decision to terminate his employment.
- The Zero Tolerance Policy was not discriminatory. The Tribunal found Mr. Aitchison knew about the Policy and that the Policy was not discriminatory for the following reasons:
- The Policy was reasonably necessary to protect the health and safety of the workers and the public. The Policy did not impose automatic termination as a condition; it only imposed the removal of an intoxicated employee from the job site. Further, the Tribunal found the Respondent had not applied the Policy in a mechanical way, but instead took individual circumstances into consideration.
- Similar policies are commonly used in the construction industry given the safety risks inherent in the industry. The Respondent in this case had adopted the Policy given the honest belief that allowing someone to work intoxicated on the job site would pose a serious risk to health and safety.
- The Policy focused on the intoxicating effect of the drug, not whether it was illegal. Nothing in the Policy stigmatized the use of marijuana simply because of its history as an illegal substance.
Zero Tolerance Policies. When implementing a “zero tolerance” workplace policy, employers should ensure that the policy is not applied in a mechanical fashion that individual circumstances are taken into consideration and that the policy:
- is reasonably related to the objective of health and safety (e.g. prohibiting the use of impairing drugs in a safety sensitive workplace);
- does not specifically target illegal drug use but makes reference to alcohol, non-prescription drugs and prescription drugs that cause impairment; and
- does not prescribe automatic termination.
Managing the use of marijuana in the workplace. The Tribunal’s helpful statement that an employee does not have an absolute right to use marijuana in the workplace and that it would be unreasonable to expect an employer to formally test an employee to determine the level of impairment before it could raise health and safety concerns, should provide employers with some reassurance of their continued right to manage the health and safety of their workplaces in relation to an employee’s use of marijuana.
By Jessica Wuergler
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