In the recent decision of French v. Selkin Lodging Ltd., the British Columbia Human Rights Tribunal upheld an employer’s policy that prohibited marijuana use in the workplace, notwithstanding the prima facie case of discrimination established by an employee who used marijuana to treat his physical disability.
John French was a cancer survivor who was employed by Selkin Logging for approximately eight months. During that time, he suffered a recurrence. While Mr. French’s doctors had condoned the use of marijuana for pain if Mr. French found that it worked, they had not prescribed it to him, nor had they endorsed its use while he was at work.
In accordance with its statutory duties under British Columbia’s occupational health and safety legislation, Selkin had a policy regarding drugs in the workplace. The policy did not contain an absolute prohibition; rather, it prohibits the presence in the workplace of a person “while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.”
Accordingly, when it came to Selkin’s attention that Mr. French had been smoking marijuana on the job, the employer sent him a letter stating that he would be terminated unless he agreed to work “drug free”. When Mr. French refused to return to work on that basis, he was dismissed.
Before British Columbia’s Human Rights Tribunal, Mr. French successfully proved a prima facie case of disability: the employee was disabled, he used marijuana to manage the pain resulting from his disability, and he was terminated expressly because of his marijuana use.
However, Selkin was able to demonstrate that its zero tolerance policy relating to persons being in the workplace while under the influence of drugs or alcohol was a bona fide occupational requirement (BFOR). The purpose of the policy was clearly and rationally connected to the safe operation of heavy equipment in the logging industry. Further, there was no evidence to suggest that the zero tolerance policy was adopted for any other reason than an honest and good faith belief that it was necessary to ensure a safe working environment.
The Tribunal did note that strict application of a zero tolerance rule, without consideration of accommodation, may offend the Human Rights Code in circumstances where an individual is legitimately using marijuana for medical purposes.
In terms of a duty to inquire, the Tribunal was also clear that employers do not have to inquire about the use of marijuana. Rather, it is incumbent upon the employee to have already secured the necessary legal and medical authorization to obtain and use marijuana for medical purposes, and to inform the employer that (s)he is legitimately using marijuana as medically and legally authorized.
In Mr. French’s case, the Tribunal found that he was in fundamental breach of his obligations in the accommodation process, which jeopardized the employer’s ability to supervise his work and ensure workplace safety in compliance with applicable health and safety legislation. Thus, his complaint was dismissed.
Although this decision comes from the British Columbia Human Rights Tribunal, it is instructive for employers all over Canada. Marijuana in the workplace is a new reality for many employers, and they must learn to navigate and balance both health and safety and human rights legislation. As stated by this Tribunal, when a zero tolerance policy is necessary for a safe working environment, it may be upheld, but not without careful consideration of accommodation for individual employees.