“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

An employee who smoked marijuana on the job without legal and medical authorization was not discriminated against when dismissed under his employer’s “zero tolerance” policy, the British Columbia Human Rights Tribunal has held.

The employer was a logging contractor.  The employee operated a “button top” machine, which resembled an excavator, used for gripping logs. He had been diagnosed with cancer some years ago and smoked marijuana to, he claimed, manage pain.  He and a coworker shared six to eight joints a day.  They smoked at work only when the foreman was not present.

The employer had a policy of “zero tolerance for drugs on the work site”.  The employer gave the employee a letter stating that “if you can’t stop taking drugs on the work site” and don’t attend at work, then the employee would be considered to have quit.  The Human Rights Tribunal decided that this was effectively a dismissal.

The employer noted Regulation 4.20 of the B.C. Occupational Health and Safety Regulation which provides:

“(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.”

The Human Rights Tribunal stated, “Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heaving equipment in the logging industry.”  The Tribunal noted, however, that strict application of a zero-tolerance rule, without consideration of accommodation of the employee’s disability (addiction), may offend the Human Rights Code where the employee has a “marijuana card” (Health Canada authorization to possess marijuana) and is legitimately using marijuana for medical purposes.

Here, the employee did not have a prescription, medical document or marijuana card and did not inform the employer that he was using an impairing or potentially impairing substance in the workplace.  It was incumbent upon him to have already obtained legal and medical authorization and to inform his employer that he would be legitimately using marijuana, and only as medically allowed.  He did not do so.

In summary, the Human Rights Code did not require the employer to accommodate the employee by permitting him to smoke marijuana in the workplace without legal and medical authorization.  “It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.” The employee’s human rights complaint was therefore dismissed.

French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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