The use of medical marijuana at a place of business will create evident conflict issues. On one hand, the employee will assert the right to be accommodated for their apparent medical disability. The employer will counter this view by its right and, indeed, its statutory obligation to ensure a safe workplace to its staff.
Human rights law has recognized that there is no distinction between adverse treatment due to a disability and the treatment which has been medically prescribed to remedy the disability. This means that the employer may presumptively not take offensive action against the employee who is medically required to administer medical marijuana in the course of the work day.
The employer accordingly has a duty to accommodate this medical treatment to the point of undue hardship. It does not, however, follow that the employer cannot set down rules as to when and where the treatment is to be administered. The employer also has an obligation to ensure a safe workplace for its remaining employees.
It is acceptable, for example, for the employer to require that the disabled employee leave the workplace premises to smoke the marijuana, when it is administered in this manner.
Recent Tribunal Decision
This issue was reviewed recently by the Ontario Human Rights Tribunal in a case involving an employer who was a commercial contractor involved in the restoration of high-rise buildings. Its employee suffered from chronic pain and was prescribed medical cannabis as a means of pain management. The worker was observed smoking cannabis while working on a “swing stage” suspended outside a building being renovated on the 37th floor.
His immediate suspension and subsequent termination were upheld by the Tribunal. This decision may well have been predictable but, nonetheless, illustrates the point that the duty to accommodate is not open-ended. The employer must also consider the health and safety of others in the workplace and the public generally. The right to use medical cannabis is not absolute.
Liability for the Breach of Duty to Accommodate
Should the employer violate the duty of accommodation, such will expose the company to considerable potential liability by a human rights complaint. The employee will have a remedy for damages for injured feelings in the expected range of $10,000 to $30,000, and if terminated, a claim for lost income to the date of hearing and reinstatement. Where reinstatement is not ordered, there could also be a claim for the loss of future expected earnings beyond the hearing date.
Conversely, the failure of the employee to be co-operative in the accommodation process will lead to a defence to the employer and justify a refusal to allow for termination or other actions.
The reform to federal law allowing for recreational use of marijuana as of October 17, 2018 will raise additional issues. The employer has every right to deny the use of marijuana at the workplace.
The more difficult question is whether the company has the right to conduct random drug testing. This will be reviewed in a subsequent post.
What Does All This Mean?
The employer must be mindful of the need to show proper accommodation of the employee’s need to use cannabis for medical reasons. It can, however, control where the use takes place and require proper medical proof of the need for this treatment and request a prognosis or evidence that the condition is chronic.
The employer must be able to show such accommodation to the point of undue hardship, a difficult, but not impossible task.
Legal advice is important as the damage claims for unfair treatment can be severe under human rights law.
Employees similarly must know their rights and remedies. This will include knowing how to provide proper medical support and to expect certain employer rules as to how the treatment is to be administered.
From the perspective of both parties, it is to be anticipated that employees working in evidentially dangerous working conditions will be subjected to severe conditions or even prohibited from such use.
Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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