Failure to disclose prescription drug use

Duty to accommodate hinges on several factors, including circumstances
By Leah Schatz
|Canadian HR Reporter|Last Updated: 03/27/2019

Question: Does an employer have to accommodate an employee using medical marijuana or another prescription drug if the employee has lied to the employer about using them?

Answer: An employer has a legitimate interest in ensuring that an employee discloses a prescription where there is a risk of impairment.

Whether or not an employer has fulfilled its duty to accommodate will turn on a number of factors, including whether the employee works in a safety-sensitive position, whether the employer has a drug policy — and what it requires — as well as the circumstances surrounding the employee’s dishonesty.

Medical usage

The fact that the dismissed employee did not disclose his prescription was not a significant issue in Airport Terminal Services Canadian Co. and Unifor, Local 2002 (Sehgal), Re.

According to the arbitrator — who ordered reinstatement — once the employer was aware of the worker’s description, it had both a procedural and substantive duty to attempt to accommodate.

The employee worked in a safety-sensitive position as a ramp agent and had tested positive for marijuana after he was involved in a minor workplace accident.

It was not until the day of the incident that he disclosed that he had been using medically prescribed marijuana for the previous three years.

According to the arbitrator in Airport Terminal Services, human rights legislation required the employer to undertake an analysis into the worker’s restrictions and limitations. However, because the zero-tolerance policy only contemplated accommodation for drug addiction disorders, it did not meet the employer’s duty to accommodate an employee authorized to use medical marijuana to treat a health disability.

The arbitrator also found that the post-incident testing policy was unreasonable because it was drafted to mandate testing after every incident, including those that were not serious.

Reasonable policy

The court took a different approach in International Brotherhood of Electrical Workers, Local Union 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc. and Valard Construction LP.

A reviewing court upheld the arbitrator’s conclusion that the worker’s failure to disclose his medical marijuana prescription was a discipline-worthy offence. At issue in that case was also a zero-tolerance policy.

However, unlike the drug policy in Airport Terminal Services, it did permit accommodation of medical marijuana prescription
usage.

The reviewing judge in Lower Churchill agreed that the zero-tolerance drug policy was reasonable and rationally connected to the legitimate requirements of the safety-sensitive workplace.

The policy in Lower Churchill also specifically required disclosure, which was necessary in order for the employer to properly assess the type of accommodation that was needed and the potential impact that the accommodation could have on the workplace.

Specificity matters

Even if a worker deliberately conceals his prescribed medical marijuana use, an employer still needs to consider duty to accommodate.

This is not to say that an employer cannot treat non-disclosure as a discipline-worthy offence. However, the policy at issue must expressly say that failure to disclose prescribed use of a potentially impairing medication could result in discipline.

In order to avoid the same pitfalls as in Airport Terminal Services, an employer will want to ensure its policy does not exclude a duty to accommodate disabilities requiring prescribed medical marijuana.

An employer will also want to ensure it has educated workers on the mandatory disclosure requirement.

With respect to the duty to accommodate, the employer will need to objectively assess the requested accommodation against the nature of the employee’s duties and workplace environment.

As in Airport Terminal Services, once the employer is aware of the need for accommodation it will need to understand the worker’s restrictions and limitations, the daily and scheduled consumption of marijuana, the strain or strength of the marijuana, the safety-sensitive nature of the workplace and the employer’s obligation to ensure the safety of all workers in the work environment.

This can be a challenging and time-consuming endeavour, but as the arbitrator in Airport Terminal Services reminded, it is a necessary one.

For more information, see:

Airport Terminal Services Canadian Co. and Unifor, Local 2002 (Sehgal), Re, 2018 CarswellNat 991 (Can. Arb.).

• International Brotherhood of Electrical Workers, Local Union 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc. and Valard Construction LP, 2016 NLTD (G) 192 (N.L. T.D.).

Leah Schatz is a partner at MLT Aikins in Saskatoon. She can be reached at (306) 975-7144 or lschatz@mltaikins.com.

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