In Aitchison v L&L Painting and Decorating Ltd., the Ontario Human Right’s Tribunal has provided guidance to employers regarding the use of zero tolerance policies concerning drug use in the workplace and medically prescribed marijuana.
The employer was a commercial subcontractor involved in the restoration of high-rise buildings. The employee had been employed as a painter for four seasons, before he was terminated from his employment for smoking marijuana at work in contravention of a zero tolerance policy. The employee filed a human rights complaint with the Human Rights Tribunal of Ontario alleging discrimination on the basis that he suffered from a disability and that he was using medically prescribed marijuana at the time of his termination. The employee suffered from a degenerative disc disease which caused chronic pain in both his back and neck. As a result, he received a prescription for medical marijuana in March 2015. In June 2015, the employee was caught smoking marijuana while he working on a swing stage suspended on the exterior of the building, 37 stories above the ground.
The employee admitted that he was smoking marijuana at work. When confronted by the employer before the termination, the employee stated that it was his right to smoke medical marijuana at work because he had a prescription. The Tribunal rejected the employees’ claims that he had been discriminated against. Ultimately, the employee was terminated because of the health and safety risk that he created when he intentionally disregarded a zero tolerance policy. The Tribunal held that the termination had nothing to do with his disability and that the termination was not discriminatory.
An interesting aspect of the case is the testimony provided by the doctor who prescribed the marijuana. The doctor testified that he had a standard conversation with the employee that he was not to operate heavy machinery or be involved in any activity that required quick reaction time while he was consuming the marijuana. The evidence revealed that there was no discussion between the doctor and employee about whether the marijuana could be used a work or about the true nature of the work that the employee was engaged in (namely, working in a dangerous position 37 stories above the ground on the exterior of a building). The doctor admitted that he assumed that by “painter” the employee was an interior house painter. When confronted on cross-examination about the employee’s work, the doctor admitted that he would never have authorized the applicant to medicate while at work in those circumstances.
Employers should scrutinize prescriptions that are provided by employees for medical marijuana. Reasonable inquiries about the scope and impact of marijuana use on the employee’s ability to perform their duties in a safe manner may be necessary. A prescription for medical marijuana does not provide an employee with an absolute right to use marijuana in the workplace, especially if health and safety is compromised.