Medical marijuana is more readily available than ever. Employees are more commonly citing marijuana for necessary pain management. Some are even brandishing a doctor's prescription for marijuana use. As a result, employers will be more challenged to deal with a variety of potential issues, including workplace health and safety, culture, and accommodation.

Employers ought to be sensitive to the prospect they have a duty to accommodate employees requiring medical treatment, including use of medical marijuana. However, employees do not have carte blanche to use marijuana while at work. A recent British Columbia Human Rights Tribunal decision, French v Selkin Logging, 2015 BCHRT 101 provides us with some insight into the accommodation process and where employers can draw the line.

The respondent, Selkin, was a logging contractor. French, a heavy equipment operator for Selkin, smoked marijuana to manage pain from cancer. He smoked at the workplace regularly. While he did not have Health Canada's authorization, nor a prescription from his doctor, his doctors had condoned his use of marijuana for pain if it was effective.

After receiving complaints and raising safety concerns, Selkin discovered marijuana in French's work truck. Selkin dismissed French, citing its "zero tolerance for drugs on the work site". In response, French filed a complaint with the BC Human Rights Tribunal alleging that Selkin had discriminated against him on the ground of physical disability.

The Tribunal found that French had proven the three elements required to establish a prima facie case of discrimination – he was disabled, he used marijuana to manage the pain resulting from his disability, and he was expressly terminated for using marijuana.

However, the Tribunal concluded that French had failed to meet his accommodation obligations by failing to acquire the required authorization permitting him to lawfully possess and use marijuana. He had also failed to obtain medical authorization from his doctors to smoke marijuana at work, which was particularly salient given his job as an equipment operator in the logging industry.

While the lion's share of the duty to accommodate rests upon the employer, employees are obliged to facilitate the process of accommodation. Given that marijuana is a prohibited substance at law, the Tribunal found that it was incumbent on French to have (1) already obtained the necessary legal and medical authorization; and (2) informed Selkin that he would be legitimately using marijuana and only as medically allowed and authorized. In the Tribunal's words, French was "singularly responsible for obtaining the necessary support to permit him to smoke marijuana lawfully, and safely." French's failure in this responsibility was "in fundamental breach of his obligations in the accommodation process".

The Tribunal concluded that the use of marijuana while on the job without legal authorization or medical authorization confirming that it was safe to do so amounted to undue hardship. Therefore, French's termination was not a violation of the Human Rights Code.

Employers should be able to usefully apply the legal authorization and medical confirmation threshold in considering the accommodation process and developing related policies.

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