One of the hot topics discussed during the recent Canadian federal election was the possible legalization of marijuana. The Liberal Party, which won the election, took a position in favor of legalization as part of its platform.
As the country waits to see whether the new government will put forward legislation to legalize marijuana, Canadian employers continue to navigate the complicated issues that arise in their workplaces when their employees have medical prescriptions permitting their use of marijuana.
By way of background, under human rights legislation in each Canadian jurisdiction, employers are required to accommodate the needs of employees with disabilities up to the point of undue hardship. In some circumstances, employees receive medical prescriptions for marijuana to treat underlying disabilities. As a couple of recent arbitration cases illustrate, navigating the workplace implications associated with such prescriptions can be complicated for employers.
Medical marijuana use in a safety-sensitive position
In Calgary (City) v. Canadian Union of Public Employees (CUPE 37), 2015 CanLII 61756 (AB GAA), a City of Calgary employee was employed as a heavy equipment operator—a safety-sensitive position. In 2009, the employee was prescribed marijuana for medical purposes. He informed two of his supervisors of his disability and that he had been issued a medical marijuana permit.
For the next two years, he continued to operate heavy equipment without incident. In 2011, representatives of management became aware of the employee’s medical marijuana use. He was immediately removed from his position and placed in a non-safety-sensitive position, pending investigation.
After completing its investigation into the matter, the city determined that the employee had a marijuana dependency that required treatment. He was provided with two options: 1) continue in a non-safety-sensitive position; or 2) consult with a doctor for further assessment of his dependency. The employee’s union filed a grievance demanding that the employee be returned to his previous position.
At arbitration, the city argued that the employee had been removed from his position because of a substance dependency, not simply because he used medical marijuana. The arbitration board disagreed. It concluded that the results of the employer’s investigation failed to prove that the employee had substance abuse issues or that he had been impaired while on duty.
The arbitration board also found that the employee had followed the city’s policy by reporting his use of medical marijuana to his supervisors and that he had worked without incident or signs of addiction for almost two years. As a result, the arbitration board reinstated the employee to his original position as he had demonstrated his ability to function in a safety-sensitive position. His possession of a permit for medical marijuana did not alone disqualify him from holding his position.
No medical permit for alleged need for medical marijuana
In French v. Selkin Logging, 2015 BCHRT 101, an employer terminated the employment of one of its employees for smoking marijuana while operating equipment at his place of work. The employee filed a human rights complaint, arguing that his marijuana use was medicinal and that he had been discriminated against because of his disability.
Unfortunately for the employee, he did not have a permit for medical marijuana and was thus using the marijuana illegally. Additionally, while there was no evidence that the employee’s consumption of marijuana had resulted in impairment, the employee had failed to inform his employer that he was using it for medicinal purposes.
The British Columbia Human Rights Tribunal found in favor of the employer. While employers have a duty to accommodate the disability-related needs of their employees, employees have reciprocal obligations to: a) obtain the proper medical authorization; b) use the marijuana as medically prescribed and in a manner that allows for the safe exercise of job duties; and c) inform the employer about the medical authorization and use of marijuana. As the employee had not fulfilled these obligations, his human rights complaint was dismissed.
Lessons for employers
Employers should be aware that they may need to accommodate the needs of employees who have a permit to consume marijuana for medicinal purposes. In order for this duty to be triggered, however, the employee must first meet his or her own obligations, including obtaining the proper medical permit, using the marijuana as prescribed and in a manner that allows the safe exercise of his or her job duties, and informing the employer.
If the employee fails to fulfill any of these obligations, an employer may be justified in disciplining the employee, up to and including termination of employment.
Employers should also note that medical marijuana use—in and of itself—cannot be used as an automatic disqualifier for safety-sensitive positions. An employer will be required to carefully assess each situation on a case-by-case basis.
Stay tuned and watch for updates to the law in this area as more cases on this subject are adjudicated and as the Liberal government considers legislation to legalize all marijuana use.
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Here is an update from today’s Washington Post on the Liberal government’s promise to legalize marijuana for general use. tk