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Oct. 13—A landmark ruling by Canada’s top court involving medicinal marijuana makes it even more difficult for employers to enforce drug-related policies and to accommodate employees to ensure compliance with human rights legislation, says employment lawyer Gabriel Granatstein, an associate in the Toronto office of Norton Rose Fulbright LLP.
The Supreme Court of Canada’s ruling allows Health Canada’s medical marijuana program to include edible or topical cannabis products, so employees who are medically authorized to use marijuana can ingest such products as cannabis-based teas or baked goods, Granatstein told Bloomberg BNA Sept. 29. While Canadians are still not legally entitled to consume marijuana in the workplace, Granatstein said, the ruling confirms that the prohibition cannot be applied without nuance.
An employer can take disciplinary action if marijuana use negatively affects an employee’s conduct, Granatstein said, but this is harder to gauge if the employee can ingest doses of marijuana similar to traditional prescription pharmaceuticals.
“If substance use doesn’t affect [employees] in any way, they might have to be accommodated,” Granatstein said. If an employee only uses medicinal marijuana away from work or in low doses while on the job, there may be little that an employer can do, according to Granatstein, and while employers are still permitted to conduct drug testing in the workplace, the results may not be helpful if the employee’s performance isn’t affected.
“You can’t apply the law without consideration of the facts,” Granatstein said. “You can’t apply a rule blindly.”
The potential implications of the Canadian court’s decision are highlighted in a recent ruling by the British Columbia Human Rights Tribunal, Granatstein said, which upheld an employer’s “zero tolerance” drug policy because the employee, a cancer patient, was using the drug illegally but said that might not have been the case if the employee had legal authorization.
It is settled law that employees are not permitted to break the law in the workplace, and in the past an employee who had illegal drugs on employer property could be terminated and possibly prosecuted, Granatstein said, but medicinal marijuana creates a new situation. Although the drug is still illegal, the Supreme Court confirmed that it is wrong to ban a substance that has medicinal value, so an employee with legal authorization to use marijuana for medicinal purposes probably can’t be terminated in Canada unless unfit for work. In high-risk jobs with a significant safety component, using marijuana in the workplace is probably still actionable, but in a low-risk situation the employer may well be powerless.
“There should be no reason to discriminate against an individual on that basis,” Granatstein said. “An employer has to consider the use of marijuana like any other condition.”
The British Columbia tribunal’s July 8, 2015, ruling in John French v. Selkin Logging Ltd. concluded that the employer’s refusal to permit the employee to continue smoking marijuana at the workplace was a bona fide occupational requirement despite lack of any evidence of incapacitation or poor performance, because his job involved high-risk logging activity. It also concluded that the employee was properly terminated because he refused to end the illegal practice.
“French’s smoking of marijuana at work, without legal authorization and without medical authorization confirming that it was safe for him to do so, was an accommodation which his employer could not properly abet in the circumstances,” tribunal member Robert B. Blasina said in the ruling. “It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.”
Proper authorization would avoid the illegality issue, however, and while there is a strong basis for the employer’s zero-tolerance policy, it would not be sufficient to support the employer’s actions in the case at hand, Blasina said, because “strict application of the zero-tolerance rule, without consideration of accommodation, may offend the [Human Rights] Code in circumstances where the individual may be legitimately using marijuana for medicinal purposes.”
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The Supreme Court ruling is available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15403/index.do, the British Columbia Human Rights Tribunal ruling at http://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt101/2015bchrt101.html.
For more information on Canadian HR law and regulation, see the Canada primer. For more information on British Columbian HR law and regulation, see the British Columbia primer.
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