Put to the Test
By Norm Keith
A recent case that the British Columbia Human Rights Tribunal (BCHRT) heard in Prince George has brought to light employers’ dilemmas and oh&s repercussions associated with accommodation issues involving the growing use of medical marijuana across Canada.
While employers are legally required to take “every reasonable precaution” to protect workers on the job, they also need to protect the rights of employees with legitimate disabilities who require medication — in some cases, medical marijuana — and to ensure that they do not face discrimination when doing so.
The BCHRT case took this dilemma head-on in July, when it heard the grievance filed by John French, an employee of Selkin Logging Ltd. in Fraser Lake, British Columbia. French, who was dismissed for using marijuana to treat his cancer without a prescription or medical direction, alleged that his employer had discriminated against him on the grounds of physical disability, under Section 13 of the Human Rights Code. French, who was diagnosed with a reoccurrence of cancer while employed by Selkin, alleged — among other things — that he had been fired for continuing to smoke marijuana on the job.
Selkin, a contractor that employs roughly 25 employees, took the position that French had never had an authorization to possess and smoke marijuana, commonly known as a “marijuana cart”. The company also argued that French had not established any basis for his claim of discrimination, had failed to meet the bona fide occupational requirement (BFOR) test and could not be at work under the influence of a drug that would impair his ability to perform work.
French’s supervisor was aware that he was using marijuana to treat his cancer and cancer-related symptoms. French usually shared six to eight joints a day with a co-worker during coffee and lunch breaks. The employer confronted French about his marijuana smoking only after several months of complaints by other employees and one safety-related incident, in which French had struck a moose with a truck owned by the employer. Marijuana was later found in the vehicle.
At that juncture, the employer made it clear to French that the company had zero tolerance for drug use on the job. It also confirmed this position in a letter, clearly indicating that his employment would be terminated unless he discontinued his use of drugs before and during his normal working hours.
French testified that he needed medical marijuana to manage his pain associated from his reoccurring cancer. But he could not produce a “marijuana card” or any evidence from a physician or medical practitioner to prove they had directed him to use medical marijuana to deal with his pain.
Despite the lack of evidence of medical authorization for the use of marijuana, the tribunal was satisfied that French had established a prima facie case of discrimination, based on his disability and his use of marijuana to manage his pain and symptoms related to his cancer treatment.
The Problem with Marijuana
The adverse medical effects of marijuana are well-documented. Marijuana is part of the cannabinoid family, which includes hashish and hash oil. Marijuana’s short-term effects include forgetfulness, decreased concentration and slower reaction time. Its longer-term effects include the buildup of cancer-producing chemicals in the body, respiratory infections and schizophrenia.
The next step in the tribunal’s analysis hinges on whether Selkin established the BFOR, a defence available to employers under section 13(4) of the Human Rights Code of British Columbia. The Supreme Court of Canada set out the following three-part test in Meiorin — a Supreme Court of Canada case that created a unified test to determine whether an employer has established a BFOR:
— The standard is proposed rationally and connected to the performance of the job;
— The employer adopted the standard in an honest and good-faith belief that it is necessary for the fulfillment of a legitimate work-related purpose; and
— The standard is reasonably necessary to accomplish the legitimate work-related purpose of the employer.
In applying the legal tests to this case, the tribunal held that the employer’s zero-tolerance policy for drug use in the workplace had been created for safety reasons and properly linked to the performance of French’s job. It also held that the employer had adopted it in an honest belief that it was necessary to ensure a safe work environment and comply with provincial health and safety laws. Third, the policy was reasonably necessary, since the employer could not accommodate French’s marijuana smoking without medical support for his pain relief and without causing undue hardship to occupational health and safety.
The tribunal also considered the relevant health and safety laws, in particular Regulation 4.20(1) and (2) of the Occupational Health and Safety Regulation, B.C. Reg. 296/197, which states that a person must not enter or remain at any workplace while his or her ability to work is affected by alcohol, a drug or a substance that may endanger the person or anyone else. It also stipulates that the employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or a substance that could endanger the person or anyone else.
This case highlights several key issues. Since French’s marijuana use was not authorized and, thus, illegal, it could not be treated like any other ordinary medication or those that may have been taken for pain relief at work. Second, the existence of a zero-tolerance policy for drug or alcohol use at work was reasonable, even if there was no evidence that French was impaired and had put others directly at risk. Third, the employer’s delay in enforcing the policy and the initial tolerance by his supervisor of French’s marijuana use during coffee breaks did not prevent the company from enforcing it later.
One of the ongoing challenges for employers in any human-rights case relating to disability is the extent to which the employer must accommodate the disability or special needs of an individual. The duty to accommodate to the point of undue hardship challenges employers and their legal counsel on how to be fair and reasonable to employees, yet enforce reasonable rules, especially those related to safety.
Although the tribunal had expressed sympathy for French’s cancer and his emotional difficulties in dealing with its late diagnosis, it determined that his smoking of marijuana at work, without legal authorization and without medical authorization confirming that it was safe for him to do so, “was an accommodation which his employer could not properly abet in the circumstances.”
The BCHRT decision would likely give employers some welcome clarity on the limits of the duty to accommodate, when balanced against the risk of workplace safety. The case underscores the importance of employers’ rights and responsibilities in enforcing general rules prohibiting the use of alcohol and drugs at or related to the workplace, which may take the form of a zero-tolerance policy. Such a policy must make explicit reference to the right of individuals to receive accommodation, up to the point of undue hardship for the employer and the safety of other workers and the public.
Employers should put in place an employee-assistance program well before enforcing a zero-tolerance policy. In the event that a worker uses “medical marijuana” at work, he or she must provide a physician’s authorization and a medical marijuana card to the employer. The employee should also give the employer a reasonable amount of time to assess the nature of the work being performed, determine if the situation involves a safety-sensitive position and decide whether the medical prescription can be accommodated without putting others in harm’s way. Finally, a delay that can be reasonably explained by an employer in taking steps to enforce a zero-tolerance policy will necessarily preclude the law enforcement of such a policy, as in this case.
Norm Keith is a partner with Fasken Martineau DuMoulin LLP in Toronto.