Article by Kirsten D. Hume
Given the increasing availability and use of medical marijuana in British Columbia, employers are often faced balancing the need to ensure a safe workplace and an employee’s right to legitimate medical treatment. A recent decision of the BC Human Rights Tribunal gives employers some welcome clarity on the limits of the duty to accommodate, the nature of bona fide occupational requirements (“BFORs”), and the legality of “zero tolerance policies” regarding drug use on the job.
In French v. Selkin Logging, the Tribunal dismissed a complaint brought by Mr. French, a heavy equipment operator for a logging company. Mr. French alleged that his employer discriminated against him on the basis of disability by, among other things, not permitting him to smoke marijuana for pain management on the job.
Mr. French was treated for cancer in 2009 and returned to work in 2010. It was widely known, including by his supervisor, that Mr. French was smoking marijuana on the job. He and another employee shared six to eight joints a day during coffee and lunch breaks.
Mr. French’s supervisor only confronted him about his smoking after months of complaints from other employees and, more particularly, after Mr. French and a co-worker struck a moose with a workplace truck. Marijuana was later found in the vehicle. The supervisor told him that the company had a zero tolerance policy for drug use on the job; Mr. French later received a letter stating that his employment would be terminated unless he agreed to return to work “drug free”.
Mr. French asserted that he needed to smoke pot to manage his pain and that his physicians directed him to do so, as his cancer had recurred. However, on probing this issue further, the Tribunal found that: he did not have a prescription; his doctors had not told him to smoke marijuana, and that there was no evidence that any doctor had condoned his smoking at work. While the Tribunal could not determine whether the marijuana was “medical grade”, there was also no evidence that Mr. French was impaired on the job.
The Tribunal accepted that Mr. French was disabled, that he used marijuana for pain management, and had been terminated for using marijuana.
However, the Tribunal also found that the employer’s zero tolerance policy was a BFOR, even though it exceeded the minimum standard under occupational safety laws (which focus on impairment and endangerment at the workplace, rather than setting a zero tolerance rule).
First, the zero tolerance policy was created for safety reasons and properly linked to the performance of Mr. French’s job. Second, it was adopted in the honest belief that it was necessary. Third, it was reasonably necessary: the employer could not accommodate Mr. French’s smoking without undue hardship.
Because Mr. French’s marijuana use was not authorized, and thus illegal, it could not be treated like other medications. Although there was no evidence that Mr. French was impaired or posed any danger, that did not mean the zero tolerance policy was unreasonable or unnecessary. The employer’s delay in enforcing the policy did not preclude it from enforcing it later. Further, Mr. French had not informed his employer of his need to smoke or otherwise facilitated the accommodation process.
In the circumstances, the requirement for reasonable accommodation did not require the employer to abet Mr. French’s smoking marijuana at work.
The French decision highlighted several important points for employers:
- It may be within employers’ legitimate management rights to impose a general rule prohibiting the consumption of drugs or alcohol at the workplace, especially where workplace safety is of particular concern. On the other hand, policies that rely on strict application of a zero tolerance rule, without considering accommodation in individual circumstances, may offend the Code if, for example, an employee is legitimately using marijuana for medical purposes.
- A zero tolerance policy should not be found unreasonable simply because an employee has not shown signs of impairment or inability to work safely.
- Where an employee is using drugs such as marijuana on the job without proper authorization, or without disclosure to the employer, a court or tribunal may be less likely to find an employer’s refusal to permit such drug usage to contravene the Code.
- An employer’s delay in enforcing a drug policy will not necessarily preclude later enforcement (although it is preferable to administer policies promptly and consistently).
- The duty to accommodate is subject to reasonable limits, and does not rest solely on the employer. Employees must facilitate accommodation, and their failure to do so may result in their complaints being dismissed.
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