Canada’s legalization of medical marijuana has had a huge impact on the country’s legal community, with debates ongoing over what should happen to people who have been incarcerated for marijuana-related offenses and issues related to the recreational use of the drug. Rules around marijuana use in the workplace, however, have not really changed, especially when it comes to safety-sensitive jobs. Just like with alcohol, employees should not expect to be able to consume marijuana while at work. But what about when someone takes marijuana for medical purposes? Should they be able to consume marijuana at work? This question was recently addressed by the Supreme Court of Newfoundland and Labrador.
The use of medical marijuana
The case was an appeal of an arbitrator’s decision involving the limits of accommodation when it comes to the use of medically prescribed marijuana by an employee in a safety-sensitive position. The employee suffered from pain doe to osteoarthritis and Crohn’s Disease. The employee worked in construction for a company building towers in Labrador. He had over 30 years of experience, but had been suffering from pain related to his medical issues for about 10 years. He was prescribed medical cannabis in 2016. While the prescription did not state how often or how much marijuana he should consume, he stated he normally had about 1.5 grams of dried flower each day after work. While he told his direct supervisor of his marijuana use, the news was not reported further up the management chain. The employee was not involved in any reported safety-related incidents during the period when his marijuana use overlapped with his employment.
The employee had been laid off for reasons not related to his marijuana use. His collective agreement provided him with a priority position when other companies were hiring. When he attended screening for a position, he told the employer he would probably fail the drug screening because of his use of medical marijuana. He was not hired for two positions, and when a third opportunity came up with another company, he was told he was not hired because of his cannabis use.
The employee filed a grievance. The arbitrator ruled in favour of the employer, stating “The Employer did not place the (employee) in employment at the Project because of the (employee’s) authorized use of medical cannabis as directed by his physician. This use created a risk of the (employee’s) impairment on the jobsite. The employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.”
The employee appealed the arbitrator’s decision, but did not receive a favourable decision. The court sided with the arbitrator, writing,
“I find that the Arbitrator accurately identified the issue before him in this case as a question of the Employer’s duty to accommodate use of medical cannabis by a worker in a safety sensitive position. He found that the duty to accommodate did not extend to a requirement that the Employer accept a risk resulting from the possibility of impairment. He concluded that the evidence of possible impairment adduced by the Employer (and not contradicted by the (employee’s) treating physician who conceded the possibility of residual impairment beyond the initial four hours from use) met its onus to demonstrate undue hardship which displaced its acknowledged duty to accommodate.”
The takeaway from this decision is that while the laws around the recreational use of marijuana have changed, employees should be aware that its use, even for medical reasons, could have an impact on their jobs. However, if you feel you have been unfairly dismissed, it is important to reach out to experienced employment law lawyers. At HMC Lawyers we advise both employees and employers about the legal implications of wrongful and constructive dismissal and represent both parties in legal claims and litigation arising from such events. We would be happy to talk to you if you are an employee or employer involved in a termination resulting from marijuana use or any other issue. We can be reached online by phone at 1-800-480-3534.