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
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
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
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
Employers should be able to usefully apply the legal
authorization and medical confirmation threshold in considering the
accommodation process and developing related policies.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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