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“Simply because there's a duty to accommodate someone with a disability does not mean you have to have endless patience for someone who's acting unreasonably or disrespectfully. You still have rights as an employer not to put up with that.”
So says Joseph Oppenheim, a lawyer at Carbert Waite in Calgary, following an Alberta Human Rights Tribunal’s determination that the revocation of a job offer was not related to a worker’s disability, but rather the worker’s unprofessionalism during an assessment of his fitness to work in a safety-sensitive workplace with a medical cannabis prescription.
Consistent and fair protocol
Tolko Industries is a forest products company based in Vernon, B.C. The company’s sawmills involve dangerous machinery and high temperatures.
Tolko had a drug and alcohol policy prohibiting employees from attending work under the influence of any substances that could cause impairment. The policy included a medical cannabis use protocol for employees who had prescriptions.
The protocol involved an assessment by an independent third party called DriverCheck, which employed medical experts with specialized cannabis training to determine if an employee’s cannabis use was compatible with a safety-sensitive position, along with any accommodations that would be required in the job.
In 2018 and 2019, five employees or job applicants disclosed the use of medical cannabis and were asked to participate in the protocol. One employee went on long-term disability leave, one stopped using cannabis and continued in his position, one was deemed unfit for safety-sensitive work, one worked with a medical professional to modify their prescription to allow them to continue in their role, and one declined to participate.
The protocol was a good one to have in place to ensure employees would be accommodated when possible as well as helping to maintain a safe workplace, says Oppenheim.
“[Tolko] had a safety-sensitive workplace and it had steps in place that were clearly thought out in advance about what to do if and when you have an employee that discloses a grow license or disability,” he says. “And it had the appropriate third-party experts in place with a well-established process – they put it in the hands of the expert to determine whether or not that person's particular usage of cannabis could work with their environment or whether any changes [or] accommodations might need to be made.”
Job offer on hold
The worker applied for a millwright job at Tolko’s High Prairie, Alta. sawmill, in 2018. Tolko offered him the position contingent on him passing a drug and alcohol test and reference checks, with a planned start date of Oct. 9. The worker would have to relocate for the job.
The worker disclosed that he had a medical cannabis prescription and a license to grow cannabis for personal use – he had a rare form of blood cancer and he used medical cannabis to treat it. The worker said that he had been on a cycle of treatment with “extremely high” THC content a few months earlier and he had been approved to grow cannabis so the cost wouldn’t be prohibitive.
Tolko referred the worker to DriverCheck for a comprehensive cannabis use assessment and put the job offer on hold pending the results.
The worker agreed to participate in the assessment, but he told DriverCheck that he rarely used medical cannabis and didn’t need to use it going forward, so the assessment was unnecessary. However, he also said that obtaining a grow license was difficult and he didn’t want to give it up.
On Oct. 3, the worker asked for a written explanation as to why the job offer had been “pulled,” saying he notified Tolko because he was worried about “small trace amounts of cannabis being in my system” from a while ago. He commented that the protocol was “like slander against my character and I can’t help but feel extremely offended.”
The HR advisor was surprised by the tone of the worker’s email and his reference to “small trace amounts of cannabis” when he had previously referred to “extremely high” THC content. She confirmed that the job offer had not been pulled, but was on hold pending the assessment.
The worker sent another email saying he and his wife were packed and ready to go, but he felt that Tolko was stalling and looking to get out of the deal. The HR advisor tried to call him, but he didn’t answer or respond to voicemail.
Read more: A safety-sensitive employer didn’t have to hire a worker who used medical cannabis when it didn’t have a way to accurately measure residual impairment, a Newfoundland and Labrador court found.
Confrontational communication
On Oct. 5, the worker sent a confrontational email saying he didn’t return the call because of his physical and mental state. He compared his experience with Tolko as “equivalent to a paraplegic being lit on fire, getting shot out of a cannon that is aimed at a wall.”
The advisor responded by explaining Tolko’s safety concerns, but she felt threatened and attacked by the worker’s emails.
The DriverCheck process proceeded until Oct. 11, at which point the worker emailed Tolko to ask “what the holdup was” as DriverCheck had told him that the report had been submitted. However, this was only the first step in the assessment process.
The advisor informed the plant manager about the worker’s emails and they agreed that they were unacceptable. Tolko decided that the worker wouldn’t be a good fit, regardless of the assessment results.
On Oct. 15, Tolko informed the worker that it was rescinding the offer of employment because the worker had become impatient and aggressive, and showed a lack of trust in the company. An employment relationship wasn’t viable because of his unprofessional behaviour, the company said.
“I've seen it on numerous occasions where an employee confuses the fact that they have some legal right or some legal protection
with the obligation to be respectful,” says Oppenheim. “It seems to me when the worker turned on the employer and started acting in an insolent manner, I think the employer had everything it needed, in this particular instance, to withdraw the job offer.”
Disability discrimination complaint
The worker filed a human rights complaint, alleging that Tolko’s putting the job offer on hold pending the assessment was discriminatory and the revocation of the offer was at least in part due to his disability.
The tribunal agreed that the worker had a disability, and he experienced an adverse impact because of his cannabis use that was related to his disability.
However, the tribunal found that Tolko had a legitimate, safety-related reason for ensuring that the worker and other employees who used cannabis were not impaired at work. This was rationally connected to the performance of the job and was reasonably necessary in a safety-sensitive workplace.
The tribunal also found that Tolko applied the standard in good faith – it recognized that it didn’t have the expertise to assess fitness to work and used an independent third party.
The tribunal agreed with Tolko that it hadn’t revoked the job offer during the assessment process and followed its protocol for any employee using medical cannabis.
Professionalism lacking
The evidence showed that Tolko was committed to the process, but the worker’s increasingly aggressive behaviour was unprofessional and even intimidated the HR advisor. His email with the comment referring to a paraplegic that accused Tolko of wrongdoing was the culmination of “an overwhelming lack of trust, composure, and professionalism” that gave Tolko good reason to revoke the job offer, said the tribunal.
The tribunal noted that the worker had likely faced discrimination from his disability and people with characteristics protected under human rights legislation have “good reason to perceive unfair treatment in employment.” However, in this case, Tolko acted in good faith and its decision to revoke the job offer was not related to the worker’s disability, the tribunal concluded.
Read more: An employer’s ban on medical cannabis without accommodation consideration was discriminatory, an Ontario court ruled.
Tolko’s established protocol put the company on solid ground, says Oppenheim, and even if the worker hadn’t been insolent, it may have been possible for the company to revoke the job offer if the assessment determined there was a safety risk.
“The employer could fall back on its process that was well thought-out in good faith, assessing what the disability is, whether or not they could work within the employee's limitations,” he says. “Having that in place is important to the extent that you can demonstrate that you actually have a process that you follow, and you're going to be generally in good standing with the tribunal.”
“Where employers run into problems is where they're doing things on an ad-hoc basis and reacting to situations,” says Oppenheim. “Then it's hard to establish any degree of consistency or fairness – when they’re doing that, it's more likely that they'll be on the back foot trying to demonstrate that they're acting fairly towards employees.”
See Hannah v. Tolko Industries Ltd., 2022 AHRC 83.
