Permission to use medical marijuana raises possible accommodation issues
Question: If an employee has government permission to use medical marijuana, can an employer prohibit him from possessing or using it on its property? Could this be a mitigation factor if the employee is found to be under the influence of the drug at work?
Answer: As a general proposition, an employer has the right to ban substances which are illegal from its workplace. Under ordinary circumstances, this would also extend to substances which are legal (such as alcohol or prescription drugs), but which may adversely affect the ability of employees to perform their duties, threaten the health or safety of others or adversely affect the employer’s reputation. Therefore, the possession or use of any drugs on company property in such circumstances would normally justify disciplinary measures.
However, the fact that the employee in question has government permission to use medical marijuana would tend to suggest he suffers from some type of serious illness. While more information would be needed as to the type and seriousness of the medical problem, such an illness may well qualify as a “disability” within the meaning of the applicable human rights legislation.
Under the Saskatchewan Human Rights Code, for example, employers are prohibited from discriminating against employees on the basis of a disability. Therefore, if an employee challenges the prohibition of medical marijuana, for example by instituting a human rights complaint, the onus will be on the employer to demonstrate it adopted the policy in good faith, for a purpose which is rationally connected to the performance of the employee’s job and the policy is reasonably necessary to the accomplishment of that purpose.
If these requirements are met, then the drug or alcohol testing measure is considered a “bona fide occupational requirement.” But where the employee suffers from a disability, the onus will still be on the employer to reasonably accommodate the employee to the point of undue hardship.
What constitutes undue hardship depends upon a number of factors. However, likely the most significant consideration would be whether the workplace and the position occupied by the employee could be classified as “safety-sensitive.” In this context, safety-sensitive positions include positions where impaired performance could cause a significant incident affecting the health and safety of the employee, other employees, customers, the public, property or the environment and includes managers who oversee those positions or perform some of the same duties.
To the extent that the worksite or an employee’s position is safety-sensitive, it is unlikely reasonable accommodation would require the employer to allow the use of medical marijuana on its property where its use could be shown to create a significant safety risk. By the same token, it is also unlikely the employee would be entitled to possess medical marijuana in the workplace. In the context of defending a human rights complaint, proof of the nature and extent of the safety risk would likely require expert evidence.
However, where there are no safety issues, the employer would have to point to some other legitimate reason for prohibiting the employee from possessing or using his medication. Whether this type of restriction would be upheld would depend upon the specific facts, including, for example, the nature of the job, the nature of the employee’s disability and the need for the use of medicinal marijuana. In the end, courts and arbitrators will balance the employer’s legitimate business interests with the employee’s right to be free of discrimination, in order to determine what is reasonable in the particular circumstances of each case.
For more information see:
•Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 (Ont. C.A.).
•Canadian National Railway v. CAW-Canada, 2000 CarswellNat 2285 (Can. Arb. Bd.).
