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Marijuana use remains cloudy

marijuanaFor those of you who missed the First Reference 18th Annual Ontario Employment Law Conference, one of the topics addressed was that of medical marijuana use in the workplace.

As laws regarding marijuana continue to evolve, even now employers are faced with ongoing legal questions concerning medical marijuana use in the workplace. Although there are a smattering of cases addressing the issue, definitive case law establishing the “do’s and don’ts” may still be lacking. For both employee and employer the following anecdote might suggest how the Tribunal may view the employer’s duty to accommodate to the point of undue hardship. Note this matter may not be directly applicable to an employer-employee relationship as this example, ironically, involved the applicant’s request for accommodation from the Human Rights Tribunal of Ontario.

In the case of Francisco v. Ontario (Community Safety and Correctional Services) the applicant had filed an Application against the Community Safety and Correctional Services alleging discrimination based on the ground of disability. The applicant reported he had been discriminated against when he was prohibited from smoking his medical marijuana while waiting for his matter to be completed at a court house in Parry Sound.

Mediation was scheduled at the Tribunal in mid January of 2015, where the applicant had requested and had been granted accommodation to use a vapourizer for his medical marijuana inside the mediation room. Although the applicant was not granted permission to smoke a marijuana joint, he did so during the course of the mediation.

Following the unsuccessful mediation the matter was set down for a hearing. In a written request for further accommodation, the applicant sought permission to be able to smoke marijuana during the course of his upcoming hearing.

The Tribunal expressed significant concerns about sidestream THC contained in cannabis smoke and its risk to passive inhalers, particularly in a closed environment, but that they were open to reviewing additional medical documentation to support the applicant’s request.

This accommodation decision was based in the absence of supporting medical evidence that may or may not have indicated that the applicant be specifically allowed to smoke during the course of the hearing.

The Tribunal stated that while the applicant may not be allowed to smoke marijuana in the hearing room and during the hearing, the Tribunal proposed to accommodate the applicant’s disability by allowing him to take “smoke” breaks during the hearing.

Albeit anecdotal, this written decision and direction suggests that although there is a duty to accommodate, it is not carte blanche. The threshold of “undue hardship” may rightly take into account how the accommodation request may impact upon others especially in regard to safety. It may be unreasonable to quash the rights of others to accommodate a person with a disability, a clear message that everyone’s rights need to be weighed.

There remains a piece missing in the marijuana matter. What if the applicant had provided the necessary documentation to support his request to smoke during the hearing? Would the Tribunal have changed its position? Or a better question, what if this request occurred in the workplace?

The work situation may be similar in that the employee would need to clearly articulate their medical need for accommodation, and the employer would have the right to request additional medical information. When the need for accommodation is requested by the employee, the employer has a legal obligation to sit down to explore reasonable and possible forms of accommodation. Again, the standard is “undue hardship”.

Medical marijuana accommodation may be in the form of smoke breaks, a modified work schedule or perhaps a specific area depending on the situation, this is all part of the procedural and substantive duty to accommodate an employee’s disability. Any heavy-handed or dismissive conduct towards this accommodation or the employee may very well have the employer before the Human Rights Tribunal of Ontario.

The employer does have a duty to accommodate a disability to the point of undue hardship, although what that may look like may remain somewhat “cloudy” for the next little while.

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Kevin Sambrano, Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more
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