Canada: Cancer Patient's Employment Goes Up In Smoke After Tribunal Dismisses Complaint Alleging Discrimination For Marijuana Use On The Job: French V. Selkin Logging Ltd., 2015 BCHRT 101 (Blasina)

Previously printed in the LexisNexis Labour Notes Newsletter

John French claimed his employer, Selkin Logging Ltd., discriminated against him in employment on the ground of physical disability when he was discharged for refusing to give up smoking marijuana at the workplace.

French was regularly employed by Selkin from late June 2013 to mid-February 2014. He was a cancer survivor and was diagnosed with a recurrence of cancer while employed with the company. Selkin was a logging contractor working in northeastern British Columbia. French's job entailed operating heavy equipment used in various phases of logging operations.

French complained that the company prevented him from taking time off to attend medical appointments and later dismissed him when it should have accommodated his marijuana smoking on the job. The company denied the allegations and said it had a "zero tolerance" policy against drugs at the workplace. Selkin asserted that French did not have any authorization to possess marijuana and, even if he could establish a prima facie case of discrimination, the company met the bona fide occupational requirement (BFOR) test because French should not have been at work under the influence of a drug, and it could not accommodate him in its safety-sensitive work environment.

French and a co-worker struck a moose while driving a company truck in early 2014. Marijuana was later found in the vehicle. When asked whether he was smoking marijuana at work, French did not deny it and made clear he had no intention of stopping.

The Tribunal found that French and a co-worker shared six to eight joints a day at work. French testified that he was following doctor's orders in smoking marijuana at work. He testified that he was smoking a "medical-type" of marijuana and it did not cause him to be impaired at work.

The Tribunal dismissed French's complaint that the respondent employer prevented him from taking time off to attend medical appointments. The Tribunal found that while French may have missed two medical appointments, it was not because Selkin compelled him to stay at work.

The Tribunal then turned to French's use of marijuana while at work. It found that French was not told by his doctors to smoke marijuana and he was not prescribed it. He did not have authorization to possess marijuana for medical reasons.  The Tribunal found there was no evidence that any doctor condoned his smoking marijuana at work – particularly while working a job as an equipment operator in the logging industry.

On the evidence, the Tribunal concluded that French had established a prima facie case of discrimination. He was disabled and used marijuana to manage pain resulting from his disability, and he was expressly discharged for using marijuana.

Applying the Meiorin test to determine whether Selkin's zero tolerance policy was a BFOR, the Tribunal found that Selkin satisfied the first two steps of the test – safety was the purpose of the zero tolerance policy and this was rationally connected to the performance of the complainant's job. The Tribunal found no evidence to suggest the policy was not adopted honestly and in the good faith belief it was necessary for a safe working environment.

The Tribunal then turned to the third part of the Meiorin test. The Tribunal noted that if an individual has appropriate authorization for possession and use of marijuana, it is no longer illegal activity. Marijuana must be treated like any other medication in such circumstances. The Tribunal also noted that strict application of a zero tolerance rule, without consideration of accommodation, might offend the Human Rights Code (the "Code") in circumstances where the individual may be legitimately using marijuana for a medical purpose.

The Tribunal determined that because marijuana is a prohibited substance at law, it was incumbent on the complainant to have obtained the required legal and medical authorization to obtain and use marijuana for medical purposes. It was also incumbent on him to inform his employer that he would be legitimately using marijuana as medically permitted. This would allow the employer to consider the effects of French's marijuana use as a potential source of impairment. Because French had not obtained these authorizations, he had not fulfilled his obligations in the accommodation process.

The Tribunal concluded that French's smoking marijuana while at work, without legal and medical authorization confirming it was safe for him to do so, could not be reasonably accommodated. In the circumstances, Selkin's application of the zero tolerance policy was a BFOR and the termination of French's employment was not a contravention of the Code.

This case illustrates the need for an employee to be forthcoming with medical information when seeking accommodation of a disability in the workplace. This is particularly important in a safety-sensitive environment where the issue of potential impairment has significant bearing on reasonable accommodation.

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