No Right to Smoke Medical Cannabis in a Safety-Sensitive Position
An Ontario Human Rights Tribunal has dismissed a complaint of discrimination by a worker who was dismissed after being found to be smoking cannabis at work. The Tribunal held that it was not reasonable to require an employer to accommodate use of medical cannabis at work where the worker was employed in a safety-sensitive position.
The Facts: The worker in this case was employed as a commercial painter working on swing scaffolding, high up on high-rise buildings. The Tribunal noted that, cannabis use at that height posed safety issues such as an inability to deal with malfunctioning of the scaffolding equipment and the potential of dropping tools or other material dozens of stories to the ground below where pedestrians frequently walked.
The worker, had a prescription for medical cannabis. He claimed his doctor had authorized used of medical cannabis at work and claimed that his supervisor had authorized use of medical cannabis on breaks, but these claims were found not credible by the Tribunal.
Ultimately, the Tribunal found that the worker was ‘self-accommodating’ – in other words he assumed he had the right to smoke medical cannabis at work, and did so without clearing it was his employer.
The Ruling: Key findings of the decision were that the request that the applicant was making for accommodation for medicating at work was not reasonable and that the worker’s decision to ‘self-accommodate’ by using cannabis at work was unreasonable. For obvious reasons, the Tribunal held that the use of cannabis on swing scaffolding many stories above the ground presented an undue hardship to the employer due to the safety concerns..
The Tribunal ruled that the employer did not discriminate against the applicant when it terminated him for smoking cannabis at work despite the worker’s prescription.
Most significantly, the Tribunal confirmed that “the applicant does not have an absolute right to smoke marijuana at work regardless of whether it is used for medicinal purposes.” (emphasis added)
Lessons for Employees: The worker made many mistakes in his approach to requesting accommodation for use of medical cannabis at work. First, he failed to get a clear prescription requiring medical cannabis use at work. In fact, in testimony, his family doctor confirmed he was unaware that the worker worked on scaffolding at high heights and also confirmed that, had he known that, he would not have authorized use of medical cannabis in the workplace or during work hours.
The worker also failed to clearly request accommodation for use of medical cannabis at work. He claimed that he had notified the supervisor, but the Tribunal found this was not credible evidence. The Tribunal was not satisfied that a supervisor would ever have approved use of medical cannabis on swing scaffolding at height while the worker was alone in the face of a clear “zero tolerance” drug-use policy and in the face of the safety concerns of a worker being alone on swing scaffolding at any time.
Further, the worker was found to be mixing his own personal marijuana with medicinal cannabis; a fact which the Tribunal noted made it difficult to assess the potency of the marijuana that the worker was smoking at work. One fact in particular that was notable in the decision is that the prescription did not limit the concentration of THC in the prescribed marijuana.
Lessons for Employers: This Tribunal decision does not mean that it will never be necessary for an employer to accommodate the use of medical cannabis at work by a worker as part of the accommodation requirement. Of course, with safety sensitive positions, such accommodation would rarely be reasonable. Similarly, employers would likely be able to make out an undue hardship defence for ‘public facing’ employees and employees performing critical work that is not ‘safety’ related, but requires employees to be alert.
In the event that an employee requests accommodation due to a medical cannabis prescription (whether it authorizes use at work or not), employers should seek clarification from the employee, including information on the frequency of use and dosage, restrictions on operating equipment, vehicles, etc., the concentration of THC or other impairing components of cannabis prescribed, whether a substitute strain of cannabis consisting of less impairing components, such as CBD, would be effective treatment or whether other non-impairing treatment options have been ruled out.
Anyone wishing to read the HRTO decision can click this link: Aitchison v L&L Painting and Decorating Ltd.
For more information on medical cannabis, please see our FAQ by clicking on this link: FAQ – Medical Marijuana, Addiction and Accommodation