The employer community grapples with accommodation all the time. The task is complicated by the question of how to deal with an employee’s lawful use of a product – marijuana – that is illegal in most contexts and which is perceived as recreational and hazardous. This article looks at how human rights tribunals have judged the issue in Canada.
We note that with the Supreme Court of Canada ruling in Smith, the newly-legal alternative forms of medical cannabis, employees have new legal treatment options that employers will be required to consider as possible accommodations.
In the case of Wilson v. Transparent Glazing Systems1, the claimant worked for Transparent Glazing Systems (TGS), the defendant, as a glazier. He obtained a medical marijuana license so that he could smoke marijuana to relieve chronic back pain and migraine headaches. He claimed to have disclosed this information when he was hired and assured his employer that he did not smoke marijuana before or during work hours. A Superintendent, an employee of the general contractor, faxed a note to TGS which stated, in part, that Mr. Wilson was taking medication that seemed to impair his ability to properly perform his duties. Two days later, TGS terminated the claimant’s employment.
The BC Human Rights Tribunal concluded that the claimant had a disability at the relevant time and that the employer knew or ought to reasonably have known of his disability. As a consequence, the employee was adversely treated and his mental or physical disability was a factor in that adverse treatment. In coming to that conclusion, the Tribunal found that the employer relied on the fax from the Superintendent, which alleged that the employee was impaired due to taking a medication. In addition, the Tribunal found that the employee was not given an opportunity to explain the allegations regarding drug use in the fax. The Tribunal found that the employer had a duty to make an inquiry in order to determine whether the employee’s disability, including the medication he was taking for his disability, was affecting his performance.
The Tribunal applied the same principles governing the duty to accommodate a disability in this instance in finding that when an employer is aware, or reasonably ought to be aware, that there may be a relationship between the disability and the performance, the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance. If those inquiries disclose that there is a relationship between the disability and the performance, then the employer has a duty to accommodate the employee to the point of undue hardship2. Ultimately, in Wilson, the Tribunal ordered compensation for injury to his dignity, feelings and self-respect in the amount of $500.
In Old v. Ridge Country Contracting3, the Tribunal refused to dismiss an employee’s claim on the basis that it had no reasonable prospect of success. The claimant, Mr. Old, suffered from a life-long illness that involved seizures. Mr. Old was employed by the complainant Ridge to operate heavy equipment and states that Ridge was aware of his condition. Mr. Old disclosed that he had discontinued his seizure medication due to side effects and indicated that he was using and found marijuana to be more effective than his medication. Mr. Old was asked to provide medical evidence of his ability to operate heavy equipment and he says he did so. Ridge says Mr. Old produced a letter from his doctor, which indicated he should remain seizure-free if he complied in the consumption of his medication. Ridge then referred to the recurrence of symptoms when Mr. Old was foolish enough to stop his medication, which requires a life-long commitment. On the basis of Mr. Old’s doctor’s information, Ridge terminated Mr. Old’s employment on May 18, 2014, to avoid injury to himself or others; arguing that he could either face financial ruin and/or criminal responsibility.
Mr. Ridge, the employer, submits that its actions were justified given the risk of injury or damage due to a seizure, or because of the employee’s use of marijuana. The Tribunal rejected this justification by stating that despite asking for medical information and its concerns about the information provided, the employer did not make any further inquiries of Mr. Old’s doctor about his compliance or about the potential treatment efficacy or undue side effects of medical marijuana. Furthermore, Mr. Ridge did not describe any efforts to engage Mr. Old in a mutual process of accommodation beyond saying it could not accommodate him without undue hardship.
In Ivancicevic v. Ontario (AGCO)4, the Ontario Human Rights Tribunal considered extensive evidence on passive marijuana inhalation in a case involving a claimed right to smoke medical marijuana in the open-patio tobacco smoking areas of licensed establishments. In dismissing the complaint, the Tribunal accepted that passive inhalation could result in “some level” of impairment, positive drug test results, and health complications associated with toxicity. A number of occupational health and safety considerations can be drawn from the Tribunal’s decision in Ivancicevic. Even though the Smoke-Free Ontario Act’s restrictions on smoking in the workplace are limited to tobacco, in light of the hazards identified in Ivancecevic, reasonable accommodation may not extend to providing an area where an employee using medical marijuana can smoke.
For similar reasons, an employer may have grounds to insist that medical marijuana be consumed privately, away from anyone who could inhale it passively. This could mean that smoking in a workplace or building’s designated tobacco smoking areas might be validly prohibited as well. In light of the complications associated with passive inhalation, an employer may be tempted to ask an employee to ingest the marijuana instead of smoking it, particularly following the Supreme Court’s ruling in R v. Smith. This, however, could be improper for a number of reasons, including increased cost or risk to the employee and the possible fundamental differences in the medical efficacy between smoking and ingestion.
In Gibson v. Ridgeview Restaurant Limited5, the complainant had a severe spinal cord injury “in the upper extremity” that limits his neck movement. A specialist prescribed him medical marijuana. The complainant regularly smoked marijuana outside of the restaurant without incident. However, he was asked to refrain from smoking in close proximity to the restaurant’s entrance. Despite receiving these instructions, the complainant continued to smoke marijuana in the vicinity of the restaurant’s entrance.
The Tribunal found that the complainant has a disability within the meaning of section 10 of the Code, as his condition fell within the Code’s definition: “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” However, the Tribunal denied the application because, in its view, the complainant did not have a disability-related need to smoke marijuana in close proximity to the restaurant’s entrance. The complainant did not establish that he was disadvantaged in any way related to disability by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance.
In addition, the respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. It appears from the evidence that the respondents adopted the requirement in light of legitimate concerns for their patrons, including health-related concerns that are “rationally connected” to running a licensed bar/restaurant. It also appears that the respondents adopted the requirement in good faith, in the belief that it was necessary in light of their legitimate concerns. Lastly, having regard to all of the circumstances, and not excluding “common sense”, it appears that permitting the complainant to smoke marijuana in close proximity to the restaurant’s entrance would have given rise to undue hardship.