Given the increasing availability and use of medical marijuana
in British Columbia, employers are often faced balancing the need
to ensure a safe workplace and an employee's right to
legitimate medical treatment. A recent decision of the BC Human
Rights Tribunal gives employers some welcome clarity on the limits
of the duty to accommodate, the nature of bona fide
occupational requirements ("BFORs"), and the legality of
"zero tolerance policies" regarding drug use on the
In French v. Selkin Logging, the
Tribunal dismissed a complaint brought by Mr. French, a heavy
equipment operator for a logging company. Mr. French alleged
that his employer discriminated against him on the basis of
disability by, among other things, not permitting him to smoke
marijuana for pain management on the job.
Mr. French was treated for cancer in 2009 and returned to work
in 2010. It was widely known, including by his supervisor,
that Mr. French was smoking marijuana on the job. He and
another employee shared six to eight joints a day during coffee and
Mr. French's supervisor only confronted him about his
smoking after months of complaints from other employees and, more
particularly, after Mr. French and a co-worker struck a moose with
a workplace truck. Marijuana was later found in the
vehicle. The supervisor told him that the company had a zero
tolerance policy for drug use on the job; Mr. French later received
a letter stating that his employment would be terminated unless he
agreed to return to work "drug free".
Mr. French asserted that he needed to smoke pot to manage his
pain and that his physicians directed him to do so, as his cancer
had recurred. However, on probing this issue further, the
Tribunal found that: he did not have a prescription; his doctors
had not told him to smoke marijuana, and that there was no evidence
that any doctor had condoned his smoking at work. While the
Tribunal could not determine whether the marijuana was
"medical grade", there was also no evidence that Mr.
French was impaired on the job.
The Tribunal accepted that Mr. French was disabled, that he used
marijuana for pain management, and had been terminated for using
However, the Tribunal also found that the employer's zero
tolerance policy was a BFOR, even though it exceeded the minimum
standard under occupational safety laws (which focus on impairment
and endangerment at the workplace, rather than setting a zero
First, the zero tolerance policy was created for safety reasons
and properly linked to the performance of Mr. French's
job. Second, it was adopted in the honest belief that it was
necessary. Third, it was reasonably necessary: the
employer could not accommodate Mr. French's smoking without
Because Mr. French's marijuana use was not authorized, and
thus illegal, it could not be treated like other medications.
Although there was no evidence that Mr. French was impaired or
posed any danger, that did not mean the zero tolerance policy was
unreasonable or unnecessary. The employer's delay in
enforcing the policy did not preclude it from enforcing it
later. Further, Mr. French had not informed his employer of
his need to smoke or otherwise facilitated the accommodation
In the circumstances, the requirement for reasonable
accommodation did not require the employer to abet Mr. French's
smoking marijuana at work.
The French decision highlighted several important
points for employers:
It may be within employers' legitimate management rights to
impose a general rule prohibiting the consumption of drugs or
alcohol at the workplace, especially where workplace safety is of
particular concern. On the other hand, policies that rely on strict
application of a zero tolerance rule, without considering
accommodation in individual circumstances, may offend the
Code if, for example, an employee is legitimately using
marijuana for medical purposes.
A zero tolerance policy should not be found unreasonable simply
because an employee has not shown signs of impairment or inability
to work safely.
Where an employee is using drugs such as marijuana on the job
without proper authorization, or without disclosure to the
employer, a court or tribunal may be less likely to find an
employer's refusal to permit such drug usage to contravene the
An employer's delay in enforcing a drug policy will not
necessarily preclude later enforcement (although it is preferable
to administer policies promptly and consistently).
The duty to accommodate is subject to reasonable limits, and
does not rest solely on the employer. Employees must facilitate
accommodation, and their failure to do so may result in their
complaints being dismissed.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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