An employee who smoked marijuana on the job without legal and
medical authorization was not discriminated against when dismissed
under his employer's "zero tolerance" policy, the
British Columbia Human Rights Tribunal has held.
The employer was a logging contractor. The employee operated a
"button top" machine, which resembled an excavator, used
for gripping logs. He had been diagnosed with cancer some years ago
and smoked marijuana to, he claimed, manage pain. He and a coworker
shared six to eight joints a day. They smoked at work only when the
foreman was not present.
The employer had a policy of "zero tolerance for drugs on
the work site". The employer gave the employee a letter
stating that "if you can't stop taking drugs on the work
site" and don't attend at work, then the employee would be
considered to have quit. The Human Rights Tribunal decided that
this was effectively a dismissal.
The employer noted Regulation 4.20 of the B.C. Occupational
Health and Safety Regulation which provides:
"(1) A person must not enter or remain at any workplace
while the person's ability to work is affected by alcohol, a
drug or other substance so as to endanger the person or anyone
(2) The employer must not knowingly permit a person to
remain at any workplace 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."
The Human Rights Tribunal stated, "Safety is the purpose of
the zero tolerance policy, and this is clearly rationally connected
to the performance of the job, namely operating heaving equipment
in the logging industry." The Tribunal noted, however, that
strict application of a zero-tolerance rule, without consideration
of accommodation of the employee's disability (addiction), may
offend the Human Rights Code where the employee has a
"marijuana card" (Health Canada authorization to possess
marijuana) and is legitimately using marijuana for medical
Here, the employee did not have a prescription, medical document
or marijuana card and did not inform the employer that he was using
an impairing or potentially impairing substance in the workplace.
It was incumbent upon him to have already obtained legal and
medical authorization and to inform his employer that he would be
legitimately using marijuana, and only as medically allowed. He did
not do so.
In summary, the Human Rights Code did not require the
employer to accommodate the employee by permitting him to smoke
marijuana in the workplace without legal and medical authorization.
"It transgressed the bounds of reasonable accommodation and
would have amounted to an undue hardship." The employee's
human rights complaint was therefore dismissed.
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