Marijuana will soon be legal for recreational use nationwide and many employers are scrambling to respond to the challenges this important change will have for safety policies and discipline issues. Our clients have frequently asked us whether an employer can have a “zero tolerance” policy for marijuana use in the workplace.
Not surprisingly, the devil is in the details with respect to any “zero tolerance” approach to marijuana use at work. First and foremost, employers cannot forget there is a legal duty to accommodate workers who are addicted to marijuana in the same manners as those employees addicted to alcohol and other substances. There is also the thorny issue of medical marijuana and whether there is any “right” for such employees to consume marijuana at work.
In one of the first cases to consider this issue the Ontario Human Rights Tribunal was faced with the question of whether a “zero tolerance” policy for marijuana consumption discriminated against a worker in a safety sensitive position who wanted to consume marijuana at work for medicinal purposes.
In Aitchison v L&L Painting and Decorating Ltd., the worker was a painter and was employed to work on high rise building projects. He suffered from degenerative disc disease and was prescribed medicinal marijuana which he asserted he needed to smoke at work. Unfortunately for the worker, his Doctor testified at the hearing that he never authorized the worker to use marijuana while working as a painter on high-rise buildings.
In any event, the worker argued that the employer’s “zero tolerance” policies for drug use was discriminatory. The policies stated,
The bringing of, or the consumption of alcohol or non-prescribed drugs on the job or working while under the influence of such will not be tolerated. Any worker found to be under the influence of alcohol or non-prescribed drugs will be removed from the project.
Misuse of illegal or legal drugs will not be tolerated on site as there is a zero tolerance policy on this site due [sic] the danger of working at heights, and endangering the public below. Please speak with your supervisor if you have to be on any mind altering medications and proper procedure will be followed to find alternative work.
The Human Rights Tribunal found that the policies in question did not offend the Human Rights Code and noted that the policies did not mention termination of employment, but rather they state that the offending employee will be removed from the job site. In perhaps the most important part of the decision, the Tribunal noted that the policies did not impose automatic termination or other disciplinary consequences. The policies spoke to employee safety by removing an intoxicated employee from the job site.
The Tribunal found that the policy in question provided the employer with the necessary “flexibility” to consider accommodation requests from addicted employees or employees who require medical accommodation.
To say the least, the facts were very favourable to the employer in this case as the worker was employed in an objectively high risk industry and his medical evidence collapsed at the hearing. However, the lesson to be learned from this case is that employers have the right to impose “zero tolerance” policies for marijuana use for “safety sensitive” positions provided accommodation issues are appropriately considered before discipline is imposed. It seems clear in this case that the worker in question had no legal right to use or be intoxicated by his medically required marijuana at work.
This case leaves open an important legal question for another day. How would the case have been decided if the worker was not performing a safety sensitive job? Would the employer have to tolerate a receptionist or a sales manager being high on marijuana, if there were no apparent safety concerns? At this point, the answer is not clear; although, we hope that an employer has a right to a sober workforce even in non-safety sensitive positions.
We will have to wait and see.
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