Legal Words

Avoiding discrimination on the basis of disability

By Allison E. MacIsaac

As the use of medical marijuana becomes more prevalent, employers are encouraged to place a high priority on ensuring they meet their legal obligations towards employees requiring the use of medical marijuana, and, in particular, their duties towards such employees.

Accommodating medical marijuana use

The obligation to accommodate the use of medical marijuana arises under human rights legislation, which protects individuals in the workplace from discrimination on the basis of disability. Employers are required to accommodate an individual’s disability to the point of undue hardship. In the case of medical marijuana, this accommodation may include allowing individuals to use marijuana in situations where such use would otherwise
be prohibited.

This means that employers and service providers may be dealing with an increasing number of requests regarding the use of medical marijuana on their premises, but the end solution for such requests is not completely clear-cut. Human rights tribunals have generally explored these issues in the context of service providers.

In Gibson v. Ridgeview Restaurant Limited, the Human Rights Tribunal of Ontario found that an applicant was not discriminated against due to marijuana use. The applicant was told not to smoke in close proximity to a restaurant’s entrance and was then told not to return to the restaurant when he did so. The applicant failed to establish a disability-related need to smoke marijuana near the restaurant’s entrance. Moreover, the restaurant’s requirement that he not smoke marijuana within six feet of the entrance was reasonable and bona fide, and had been adopted in good faith in light of legitimate concerns for patrons, including health-related concerns. Permitting the applicant to smoke in close proximity to the restaurant would have given rise to undue hardship.

Similarly, in Ivancicevic v. Ontario (Consumer Services), an applicant who had an “authorization to possess” marijuana argued that a regulation under the Liquor Licence Act discriminated against him on the basis of disability because he was not allowed to hold and/or consume medical marijuana while on a licensed premises.

The Tribunal found that the applicant had a disability-related need to smoke marijuana and to use it through the day; the regulation was therefore prima facie discriminatory. However, the defence of undue hardship was met because the regulation was adopted in good faith for health and safety reasons to protect against an established risk from marijuana smoke, and was therefore necessary to accomplish a legitimate purpose.

What does this mean for employers?

A prescription for marijuana does not give employees a guarantee to use it in the workplace. Both the employee and employer are subject to certain obligations with regards to the use of medical marijuana in the workplace.

For example, a prescription for medical marijuana does not entitle an employee:

  • To compromise their own safety
  • To compromise the safety of others
  • To smoke in the workplace (as anti-smoking laws apply to smoking marijuana as well)
  • To have unexcused absences
  • To be impaired at work

Chronic marijuana consumption may have residual effects on concentration, attention and memory. Even though an employee isn’t consuming on site or does not feel impaired while working, employers will have to confirm whether safety-sensitive tasks respect the limitations resulting from the drug.

Human rights tribunals have not yet had the opportunity to deal with the use of medical marijuana in the workplace. Regardless, employers should weigh competing interests and obligations in order to ensure that any rule prohibiting the use or possession of marijuana does not discriminate against those with disabilities.

In de Pelham v. Rain for Rent Canada ULC, 2014 HRTO 1689, a case of marijuana use and pre-employment screening, it was found that there must be evidence of a disability to trigger scrutiny. The applicant had not indicated a concern that a pre-employment drug test or reference check would reveal a disability, nor had he pointed to any evidence that would indicate that the employer perceived him to have a disability.

The application was dismissed. The Tribunal found that since the applicant did not indicate a concern that a pre-employment drug test or reference check would reveal a disability, nor did he point to any evidence that would indicate that the respondent perceived him to have a disability, the application had no reasonable prospect of success as the allegations did not relate to a ground protected by the Code.

What should employers consider?

As discussed, human rights tribunals have yet to consider the specific issue of use of medical marijuana in the workplace. It is likely that, as in the cases above, employers will be required to weigh competing interests and obligations to ensure that any rule prohibiting the use or possession of marijuana in the workplace does not discriminate against those with disabilities.

When faced with a request to use or possess marijuana in the workplace, at a minimum employers should consider the following factors:

  • Does your employee have a disability-related need to consume medical marijuana?
  • Would a refusal to allow that employee to use or possess marijuana have the effect of creating a substantive disadvantage for that employee by effectively prohibiting him or her from consuming medically sanctioned marijuana?
  • Do you have an explicit policy prohibiting the use or possession of marijuana in the workplace?
  • Is that prohibition based on health and safety considerations, or other considerations that are rationally connected to the workplace?
  • Was the prohibition adopted in good faith, as opposed to being motivated by discriminatory animus?
  • Is the prohibition no broader than necessary to accomplish its purpose?
  • Is there a location available at the workplace where an employee can discreetly consume the medical marijuana?

Be proactive

It will not be sufficient for employers to simply state that accommodation of an employee’s disability-related need to use or possess medical marijuana through his or her working hours will constitute undue hardship. Each case will require an individual analysis of the competing interests and workplace requirements involved. On a proactive basis, workplace policies and procedures should take into account the potential for accommodation of medical marijuana use or possession in the workplace. ■


Allison E. MacIsaac is an associate lawyer at Hicks Morley’s Toronto office and currently practices in all areas of labour and employment law.