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In a recent decision at the Human Rights Tribunal of Ontario (“HRTO”), the HRTO confirmed that there is no absolute right to the use of medical marijuana in the workplace when it is decided that an employer has not discriminated against an employee by terminating the employee’s employment for smoking marijuana while at work in a safety-sensitive position. Through the decision, the HRTO considered the intersection of issues involving drug use in the workplace, accommodation, and termination for cause.

Background

The employer respondent, L&L Painting and Decorating Ltd. (“the Respondent”), was a commercial contractor involved in the restoration of high-rise buildings. Mr. Aitchison, the Complainant, filed a human rights complaint against the Respondent claiming that it had discriminated against him with respect to employment because of his disability when it failed to accommodate his disability in the workplace.

Mr. Aithchison had worked for the Respondent for many years as a seasonal painter and his work duties required him to perform work on a swing stage suspended outside of a building.

Mr. Aitchison was found smoking cannabis at work on a swing stage outside the 37th floor and, as a result, his supervisor sent him home. The Respondent terminated Mr. Aitchison’s employment shortly after the incident, in June 2015, for smoking marijuana while at work in violation of the Respondent’s “zero tolerance policy”. The policy addressed the use of illegal drugs, alcohol, and prescription drugs that could cause impairment while working because of the safety-sensitive nature of the work.

Mr. Aitchison did not deny using marijuana at work but claimed that his drug use was condoned by his supervisor, and was for medical purposes relating to a degenerative disc disease which resulted in chronic neck and back pain. Mr. Aitchison carried a prescription for his medical use of marijuana but had never made an accommodation request prior to his termination.

Mr. Aitchison brought a human rights complaint alleging that the respondent employer had terminated his employment instead of accommodating his disability by allowing him to use medical marijuana.

HRTO Decision

The HRTO found that both parties’ evidence was unreliable, and it specifically rejected Mr. Aitchison’s arguments that the Respondent had failed in its procedural obligation to investigate whether Mr. Aitchison had suffered from an addiction before taking steps to terminate him or that the Respondent required evidence of impairment before terminating Mr. Aitchison.

The HRTO made the following key findings:

  • Aitchison unilaterally decided to use marijuana at work without authorization;
  • Aitchison’s doctor had prescribed him marijuana without being fully aware of the safety-sensitive nature of Mr. Aitchison’s job;
  • There was no evidence that Mr. Aitchison suffered from any addiction with respect to his marijuana use;
  • The Respondent was not required to investigate the possibility of accommodating Mr. Aitchison after he had provided the grounds for his own termination and, in any event, the Respondent was not required to accommodate Mr. Aitchison’s preferences if those preferences would amount to undue hardship;
  • Aitchison did not have an absolute right to smoke marijuana in the workplace, regardless of whether it had been prescribed for medical purposes; and
  • Aitchison was dismissed for a serious health and safety violation, not due to any disability.

With respect to the Respondent’s zero-tolerance policy, the HRTO found that it was not discriminatory for the following reasons:

  • The policy was reasonably necessary to protect the health and safety of the workers and the public;
  • The policy did not impose automatic termination following a finding of violation but instead provided some flexibility to the Respondent to consider requests from those who required accommodation;
  • The Respondent did not apply the policy in a mechanical way, but instead took individual circumstances into consideration;
  • The policy focused on the intoxicating effect of the drug, not whether it was illegal. Nothing in the policy stigmatized the use of marijuana due to its history as an illegal substance; and
  • Aitchison was or would have been aware of the policy.

Key Takeaways

The following are some key takeaways from Aitchison v. L & L Painting and Decorating Ltd.:

  • Employees do not have an absolute right to smoke marijuana, including medical marijuana, in the workplace;
  • Having a zero-tolerance policy in place could assist employers in setting out expectations for employees and may be relied on, at least in part, to justify terminating the employment of employees whose behaviour violates the policy;
  • Zero tolerance policies in the workplace should:
    • Be brought to the attention of employees on at least an annual basis;
    • Not be applied mechanically or in a way that avoids taking individual circumstances into account;
    • Be reasonably related to the objective of maintaining health and safety in the workplace;
    • Not target illegal drugs only, but instead should reference other potential causes of impairment, such as alcohol;
    • Not allow for automatic termination in the event of a violation.

If you have any questions or would like further information regarding the marijuana use by employees, accommodation of employee illness and disability, and how legalized marijuana may impact the workplace,  please contact Kristine Gorman at Sultan Lawyers PC by telephone at (416) 214-5111  or by email at kgorman@sultanlawyers.com.


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