In a recent decision, Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238, the Ontario Human Rights Tribunal (the “Tribunal”) upheld the termination of an employee who was using cannabis at work, ostensibly for medical purposes.

The employer was a commercial contractor involved in restoring high-rise buildings. The complainant worked for the employer as a seasonal painter from 2011 – 2015. The complainant suffered from chronic pain in his back and neck as a result of a degenerative disc disease and started using medical cannabis in March 2015 to manage the pain. Before that, he had been self-medicating with cannabis.

In order to perform his job, the complainant worked on a “swing stage” that was suspended outside the building. On the morning of June 18, 2015, the site supervisor saw the complainant smoking cannabis while on the swing stage, which was at a level of 37 floors. The complainant was also not wearing a hard hat and was untethered. The supervisor sent the complainant home in accordance with the General Contractor’s zero tolerance policy on the use of intoxicating drugs and alcohol on the worksite (the “Policy”) and the complainant was ultimately terminated on July 6 by the employer. The complainant then filed a human rights complaint on the ground of discrimination based on disability; namely, that the employer had failed to accommodate him.

At the hearing, the complainant argued that his disability was a factor in the employer’s decision to terminate his employment and that in relying on the Policy, the employer failed to take an individualized approach to his accommodation needs. The complainant also argued that the employer should have inquired whether his use of cannabis was for medical purposes, or possibly part of an addiction.

The complainant also stated that he had an understanding with the site supervisor that he could medicate in a designated spot away from the rest of the crew during his breaks and that he medicated himself on the swing stage, because he worked on the 37th floor which left no time for him to go down to the ground level during his breaks.

The employer stated that it had terminated the complainant because of health and safety concerns relating to impairment while at work. The employer stated that it would have been reckless for it to have allowed the complainant to work in a potentially intoxicated state and that if the General Contractor had observed these events, the employer could have lost its contract.

The employer also produced evidence to show that subcontractors were contractually obliged to adopt the General Contractor’s Policy and that zero policies were common in the construction industry. The evidence also showed that all employees had been provided training, which included watching a health and safety video that referenced the Policy.

The Tribunal found that given the health and safety risks inherent to that particular worksite, the dismissal of the complainant was not discriminatory and that the employer had not acted in a discriminatory manner. In reaching this decision, the Tribunal considered the following:

o there was no evidence to indicate that the site supervisor had condoned the cannabis use;
o there was no evidence to indicate that the complainant had requested an accommodation in relation to the cannabis use;
o it was the complainant’s choice and preference to self-medicate while at work and if the complainant had asked his physician whether he should medicate at work, the physician would have instructed him not to, given the nature of the complainant’s job;
o there was no evidence to suggest the complainant was addicted to cannabis; and
o the employer did not apply the Policy in a mechanical way, but instead considered the specific circumstances.

The Tribunal noted that an employee does not have an absolute right to smoke cannabis at work regardless of whether it is used for medicinal purposes and that an employer is not required to accommodate preferences with regard to using cannabis if doing so would amount to undue hardship. The Tribunal also noted that the employer had no obligation to consider whether it could reasonably accommodate the complainant after the fact, i.e., after the complainant had provided grounds for his termination. The Tribunal further noted that it would not be reasonable to expect that the employer would have had to formally test the complainant’s level of impairment, before it could raise a health and safety issue.

In finding that the Policy itself was not discriminatory, the Tribunal considered the following:
o zero tolerance policies are commonly used in the construction industry given the safety risks inherent in that industry;
o the employer adopted the Policy in the honest belief that allowing someone intoxicated into the worksite was a serious risk to that individual as well as the public;
o the Policy was reasonably necessary to protect the health and safety of the workers and the public;
o the Policy did not impose automatic termination as a condition – it only required the removal of an intoxicated employee from the job site.
o the Policy did not preclude the accommodation of employees who needed to use medical cannabis as such employees could be accommodated in non-safety sensitive positions; and
o the Policy did not stigmatize the use of marijuana based on its history as an illegal substance.

Employer Takeaways
• Employees do not have an absolute right to smoke cannabis at work even for medicinal purposes.
• An employer does not have to accommodate employee preferences in relation to cannabis use if it would result in undue hardship.
• An employer is not required to consider whether an employee needs accommodation, after an employee has already provided the grounds on which the termination is based.
• Note the factors to be considered in drafting a zero tolerance impairment policy
See also our previous post on “Medical Cannabis and Undue Hardship”