In Canada medical cannabis was legalized in 2001 when the federal Government introduced the Medical Marihuana Access Regulations. In 2002 there were only 455 Canadians authorized to possess medical cannabis. The impact on the workplace at that time was fairly minimal but the impact has increased as there are now around 270,000 registered patients. With this increase and the impending legalization of recreational cannabis there is a growing concern around impairment in the workplace and responsible use of medical cannabis. A recent decision from the Ontario Human Rights Commission addresses the issue of medical cannabis use on a job site.
In the case of Aitchison v. L&L Painting and Decorating Ltd, Mr. Aitchison worked as a seasonal painter on a high rise building restoration project and had been prescribed medical cannabis for his degenerative disc disease which caused him chronic back pain. The role he worked in required him to work on a swing stage on the outside of the building at 37 floors above the ground. He was required to wear a harness and the position was considered safety sensitive.
Mr. Aitchison had worked for L&L seasonally between 2011 and 2015. In March 2015, Mr. Aitchison obtained a prescription for medical cannabis, which he claimed to have disclosed to his manager, Mr. Ujka, and that Mr. Ujka approved him to consume his cannabis during work time. The site that Mr. Aitchison worked at had a zero tolerance drug and alcohol policy that he acknowledged through the completion of a questionnaire. Mr. Aitchison also claimed to have made a request for accommodation due to an electric sander aggravating his pre-existing injury. It’s unclear whether sufficient medical information was provided for an accommodation request.
Mr Ujka denied having knowledge of or condoning the consumption of cannabis during work time. He also denied receiving a request for accommodation or any supporting medical documentation. In June 2015, Mr Ujka claimed that he found Mr. Aitchison consuming cannabis out on a swing stage without a harness on and confronted him about this.
Following the June 2015 discovery of Mr. Aitchison consuming cannabis at work his employment was terminated. Mr. Aitchison claimed that his termination was discriminatory, as he believed it was in response to his request for accommodation.
There are many details of this case that are not clear, however, the judge reviewed the evidence and determined that although a disability did exist it was not the reason for Mr. Aitchison’s termination. The judge found that the zero tolerance policy was not discriminatory and that through his actions Mr. Aitchison provided grounds for his employment to be terminated by smoking cannabis at work.
This case is important as it emphasizes that an employer is not obligated to accommodate use of an impairment causing substance at work, or impairment in the workplace, even if an employee holds a valid medical prescription. Although the employer was able to show that the termination was not discriminatory, it’s important for companies to set clear expectations for their employees about drugs and alcohol in the workplace. This includes having a well-written and broadly communicated drug and alcohol policy that addresses disclosure of impairment causing drugs and accommodation. Being clear with employees will help to mitigate risk in your organization and allow you to enforce your policy when there is a breach.