Employee’s failure to disclose prescription drug use

The duty to accommodate when an employee covers up drug prescription
By Leah Schatz
|Canadian Employment Law Today|Last Updated: 03/06/2019

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.