“Accommodation of disabilities being treated through medical cannabis is a complex and challenging area for both employers and employees, with ongoing development in both the science and the law.” – Robert v National Process Equipment Inc., 2021 AHRC 133 at para 20

Marijuana has become a hot workplace topic since its legalization. A recent labour decision has addressed zero tolerance alcohol and drug policies and reinforced the duty to accommodate.

Background

Dealing with medical marijuana in the workplace continues to present a significant challenge for employers when trying to balance employee privacy and human rights with workplace safety. Like with any other drug or substance that is legal but has the potential to impair, employers are entitled, and in many cases legally obligated, to implement policies that control the use of medical marijuana in the workplace. At the same time, employers may also have to contend with an employee’s privacy rights and right to accommodation. The balancing of these legal rights and obligations requires employers to maintain a delicate balance. While the use and management of medical marijuana in the workplace continues to be an evolving area of law, some general principles are emerging.

All employers in Canada have a statutory obligation to provide reasonable accommodation, to the point of undue hardship, to employees with a physical or mental disability. As such, employers may be legally obligated to accommodate employees who use medically-prescribed marijuana to treat a disability. That said, employers are not required to automatically permit the use of marijuana in safety-sensitive workplaces just because an employee’s physician prescribes its use. In addition to the statutory duty to accommodate, employers also have a duty under the applicable occupational health and safety legislation to manage medical marijuana use for employees occupying safety-sensitive positions to ensure it is compatible with working in a safety-sensitive environment.

Zero tolerance policies unreasonable

While employers are entitled to implement policies regarding the disclosure and use of medical marijuana in safety-sensitive work environments, the growing consensus among labour arbitrators is that zero tolerance policies are unreasonable.

This was the situation faced by the employer in Ornge Air v Office and Professional Employees International Union, 2021 CanLII 126376. The employer in that case had established a zero tolerance policy that prohibited safety-sensitive positions from using marijuana at any time, whether on or off duty, and whether for recreational or medicinal purposes.

The grievor operated in a safety-sensitive position and was prescribed medical cannabis for his anxiety disorder. The employer accommodated the grievor during his medical marijuana treatment by providing non-safety-sensitive work, but when the employer was advised that the treatment would be extended for an additional six months, it decided it could not maintain the grievor’s accommodation. This decision was made by the employer notwithstanding an independent medical examination, which provided conditions under which the grievor could continue his medical marijuana treatment and still be fit for duties for his safety-sensitive job. Despite the possible accommodation, the employer concluded that the grievor’s treatment made him unfit for work and that the grievor would not be complying with its drug and alcohol policy’s prohibition against marijuana use.

The arbitrator found that the zero tolerance standard could have been modified without imposing undue hardship on the employer and as such, the employer’s steadfast adherence to the zero tolerance policy was unreasonable.

Based on the foregoing, unionized employers should be aware that a zero tolerance policy, even if based on a legitimate interest in maintaining the safety of the workplace, may be found unreasonable at arbitration if it treats medical marijuana differently than other medications that may negatively impact an employee’s fitness for duty.

Policies requiring disclosure are reasonable to evaluate safety risks

Despite the foregoing, policies designed to protect workers on safety-sensitive sites are still considered legitimate restrictions. The requirement to be impairment free in the workplace can be a bona fide occupational requirement provided accommodations are considered for employees using medical marijuana.

Further, termination of an employee for failing to abide by a drug and alcohol policy is not necessarily discrimination on the basis of physical or mental disability. Termination for breach of policy, as considered by the Supreme Court of Canada in Stewart v Elk Valley Coal Corp., 2017 SCC 30, can be reasonable, but must be considered on a case-by-case basis. This includes circumstances where there is failure to disclose medical marijuana use in a safety-sensitive workplace when required by policy.

In Bird v Lafarge Canada Inc., 2021 AHRC 50, the employee failed to inform his employer that he had an authorization for medical marijuana. This failure to disclose violated the employer’s drug and alcohol policy and, after testing positive for THC during a post-incident test, the employee was terminated. As the employee did not disclose his use of medical cannabis or any physical or mental disability that would require accommodation, there was no information to support a connection between a disability and the termination. As such, the Alberta Human Rights Tribunal concluded that the employee was terminated for breaching the employer’s medical disclosure requirements, not because of his use of medical marijuana, and the complaint was dismissed.

Takeaways for employers

As medical cannabis in the workplace continues to increase, employers should create strong policies for dealing with medical marijuana use and accommodation requests. While zero tolerance policies should be avoided, it does not mean that all medical marijuana use is reasonable in safety-sensitive workplaces, and disclosure should be required.

When considering all possible accommodations, employers must consider the specific circumstances of each case. Independent medical examinations can be used to assess the impact of medical marijuana use on a specific user’s fitness for duty to help determine what, if any, accommodations are possible. Employers can require disclosure and request the following information, subject to ensuring appropriate privacy and confidentiality safeguards are in place:

• Is it medically authorized?
• How much marijuana is authorized?
• How much THC does the product contain?
• How is it being used (e.g. smoking, inhaling, ingesting, vaping)? What is the dose?
• What is the frequency of use? What time is it used?
• What adverse affects arise from use?
• What workplace limitations are associated with use?
• Are there other first line treatments available? If so, have they been used?
• Is the employee able to safely perform their job?
• Any addictions?

Employers should also keep an eye out for labour law developments relating to self-medication. Since the legalization of marijuana, more and more individuals are using marijuana to cope with their medical conditions without authorization from a healthcare professional, presenting additional challenges to employers. The Dentons Canada labour team will continue to provide updates on the latest developments.

If you have any questions about your drug and alcohol policies, or any other employment and labour questions, please reach out to a member of the Dentons Employment and Labour group who would be happy to help.