Employee’s failure to disclose prescription drug use

The duty to accommodate when an employee covers up drug prescription

Leah Schatz

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, what it requires, and the circumstances surrounding the employee’s dishonesty.

The fact that the dismissed employee did not disclose his prescription was not a significant issue for the arbitrator 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. The employee in 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 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.

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

Even if an employee deliberately conceals his prescribed medical marijuana use, an employer will still need to consider its 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 that its policy does not exclude a duty to accommodate disabilities requiring prescribed medical marijuana. An employer will also want to ensure that it has educated its 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 endeavor, 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 with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected]

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