Most people would be concerned if a person operating heavy road
maintenance equipment in a large city was also a regular
medical marijuana consumer, entitled by permit to consume a
significant amount of marijuana on a daily basis.
In responding to this concern, a large municipal
employer removed a long service employee from the workplace,
citing concerns over public safety. The employee challenged
the removal, alleging discrimination on the basis of
The employee had a medical marijuana permit from Health Canada,
stemming from pain associated with degenerative neck disease.
While his permit allowed the employee to legally consume a large
quantity of marijuana, he maintained that he only consumed a small
amount each night. Shortly after obtaining the permit, the
employee notified his supervisors and was thereafter permitted to
continue to operate heavy equipment for over a year. When
others in management later became aware of his marijuana use, he
was removed from his safety sensitive position and accommodated
elsewhere, pending investigation.
After a lengthy investigation and review, which spanned nine
months and included a detailed IME Report with recommendations,
the employer gave the employee a choice; he could either
remain in his accommodated position (which did not involve any
perceived safety risk) or he could commit to substance abuse
The union grieved, arguing that the employee was being
discriminated against on the basis of disability, and sought his
return to his former safety-sensitive position. The union
maintained that there was no evidence of workplace impairment or
resulting poor performance and, therefore, no basis to prevent the
employee from continuing to perform the safety-sensitive work.
The employer maintained that it was justified in holding the
employee out of his safety-sensitive role on the basis that fitness
to perform his work safely was a bona fide occupational
requirement, having regard to the employer's public safety
obligations, both statutory and at common law. The
employer's position appears to have been grounded in the belief
that the employee had unresolved dependency issues.
The case proceeded by way of a panel and produced a dissenting
The majority found the employer's investigation to have
been flawed in several respects. According to the majority,
the investigation did not establish the employee's dependency
on marijuana (which would generally remove any human rights
considerations from the analysis, but did not in this case), nor
did it establish resulting performance issues or impairment while
at work. In the circumstances, the majority found the
employee to have been wrongfully held out of his position for
almost four years.
As a result, the majority ordered the employee's return to
his former position, with compensation and subject to a number of
conditions (including random substance testing).
While the employee was not found to have had a disability
stemming from marijuana dependency, the fact that he consumed
marijuana in order to manage his pain-related (neck) disability,
brought the accommodation analysis into play. In such
analysis, the safety-sensitive nature of the workplace was but one
of the factors assessed.
The case is instructive to employers in that it emphasizes the
importance of conducting a fair and accurate investigation and
cautions against proceeding to investigate a matter with a desired
conclusion in mind (the majority found the employer to have
created the employee's dependency issues). The case also
highlights the requirement that employers accurately assess the
actual impact of marijuana consumption (or any other substance) on
job performance, as reliance on impressionistic concerns will not
So, while most people may be concerned that the person operating
heavy road maintenance equipment on their city streets is a
habitual marijuana consumer, this concern alone is not sufficient
to justify an employer eliminating that perceived risk through
transfer to a less safety-sensitive role. Rather, it seems,
such justification must be found in evidence of actual workplace
impairment and an inability to accommodate the (potential) harm
that comes with such impairment.
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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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.
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