An employee who smoked marijuana on the job without legal and medical authorization was not discriminated against when dismissed under his employer’s "zero tolerance" policy, the British Columbia Human Rights Tribunal has held.
The employer was a logging contractor. The employee operated a "button top" machine, which resembled an excavator, used for gripping logs. He had been diagnosed with cancer some years ago and smoked marijuana to, he claimed, manage pain. He and a co-worker shared six to eight joints a day. They smoked at work only when the foreman was not present.
The employer had a policy of "zero tolerance for drugs on the work site." The employer gave the employee a letter stating that "if you can’t stop taking drugs on the work site" and don’t attend at work, then the employee would be considered to have quit. The Human Rights Tribunal decided that this was effectively a dismissal.
The employer noted Regulation 4.20 of the B.C. Occupational Health and Safety Regulation, which provides:
"(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else."
"Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heaving equipment in the logging industry,” said the tribunal. It noted, however, that strict application of a zero-tolerance rule, without consideration of accommodation of the employee’s disability (addiction), may offend the B.C. Human Rights Code where the employee has a "marijuana card" (Health Canada authorization to possess marijuana) and is legitimately using marijuana for medical purposes.
Here, the employee did not have a prescription, medical document or marijuana card and did not inform the employer that he was using an impairing or potentially impairing substance in the workplace. It was incumbent upon him to have already obtained legal and medical authorization and to inform his employer that he would be legitimately using marijuana, and only as medically allowed. He did not do so.
In summary, the Human Rights Code did not require the employer to accommodate the employee by permitting him to smoke marijuana in the workplace without legal and medical authorization.
"It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship," said the tribunal. The employee’s human rights complaint was therefore dismissed.
For more information see:
- French v. Selkin Logging, 2015 CarswellBC 1898 (B.C. Human Rights Trib.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
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