Two recent decisions of the British Columbia Human Rights Tribunal have shed some light on an employer’s obligations to accommodate an employee using marijuana for medical purposes. What we learn from these cases is that employers are obligated to engage the accommodation process as would be done with any other disability.
In Old v. Ridge Country Contracting, an employee was terminated after providing a medical certificate regarding his use of medical marijuana. The medical certificate indicated that the employee should remain seizure free if he complied in the consumption of the medical marijuana. The employee operated heavy equipment in what could be described as a safety sensitive position. The employer terminated the employee on the basis that the employee’s seizures or conversely the employee’s impairment due to marijuana constituted a safety risk.
The BC Human Rights Tribunal refused to dismiss the employee’s human rights claim at an early stage on the basis that it had no reasonable prospect of success. In making this interim decision, the adjudicator was concerned that no evidence was provided that the employer sought more information or clarification about safety risks after receiving the medical certificate. Furthermore, the employer’s evidence did not disclose any efforts to engage the employee in the accommodation process beyond simply informing the employee that he could not be accommodated without imposing an undue hardship.
In French v. Selkin Logging, the BC Human Rights Tribunal dealt with a similar situation. In this case, an employee was terminated for marijuana use at the workplace. The employee in this case had cancer but did not provide the employer with a medical certificate justifying the use of marijuana at the workplace. Furthermore, the employee consumed the marijuana with a co-worker in the presence of several other employees but never in the presence of a supervisor. When questioned about his marijuana use, the employee did not provide a medical certificate (because he did not have one) but rather, simply stated that he was a cancer patient and was smoking marijuana for pain relief.
The BC Human Rights Tribunal was satisfied that the termination constituted a prima facie case of discrimination. The employee was disabled, was using marijuana to manage pain from that disability, and was explicitly terminated for using marijuana. However, in this case the adjudicator determined that the employee failed to meet his obligations in the accommodation process. An accommodation that would permit this employee to smoke marijuana at work without medical authorization confirming that it was safe for him to do so was determined to be an accommodation that would have amounted to an undue hardship. The employee’s human rights application was therefore dismissed.
What these cases tell us is that even with medical marijuana, employers and employees are obligated to participate in the accommodation process. In most circumstances, this will involve requesting medical information that both states that the marijuana is necessary but also provides information about impairments the employee may suffer while under the influence of marijuana. Once adequate information is provided, the employer and employee should participate in the accommodation process as would be done with any other disability.
