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Canada: The Human Rights Tribunal of Ontario ruled that employees do not have an absolute right to smoke marijuana in the workplace

A recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Aitchison v L&L Painting and Decorating Ltd, 2018 HRTO 238, confirmed that employees do not have an absolute right to smoke marijuana, medical or otherwise, in the workplace.

The case involved an employee, Mr. Aitchison, who worked as a seasonal painter. In his position, Mr. Aitchison was required to perform restoration and maintenance services on the exteriors of high-rise buildings.

Mr. Aitchison suffered from chronic back and neck pain. He began treating his symptoms with medical marijuana in 2015 and would take breaks from his work to smoke same. Mr. Aitchison did not ask his employer for accommodation for his disability.

In June 2015, Mr. Aitchison was sent home after his site supervisor observed him smoking marijuana on a swing stage suspended from the 37th floor of a building. Shortly thereafter, the employer terminated Mr. Aitchison’s employment because of his use of marijuana in the workplace. Given the extremely safety-sensitive nature of the job, the use of illegal drugs, alcohol, or prescription drugs that may cause impairment in the workplace was entirely prohibited by the employer’s “zero tolerance” policy.

Mr. Aitchison filed a complaint with the Tribunal alleging that his employer discriminated against him due to his disability and failed to accommodate his disability.

While the Tribunal found that Mr. Aitchison had a disability that was protected by the Ontario Human Rights Code, it held that the employer did not discriminate against or fail to accommodate Mr. Aitchison’s disability. The Tribunal ultimately concluded that Mr. Aitchison’s actions had provided the employer with grounds to terminate his employment.

In reaching this conclusion, the Tribunal noted that the employer had no knowledge of Mr. Aitchison’s marijuana use in the workplace before the incident that led to his termination. Accordingly, the Tribunal found that “it is difficult to conclude that the respondent failed to accommodate a request that was never made.”

However, even if Mr. Aitchison had requested accommodation prior to the incident, the Tribunal noted that there was no obligation to accommodate Mr. Aitchison in a manner that would amount to undue hardship. The Tribunal concluded that Mr. Aitchison’s preferred accommodation of an unlimited right to smoke marijuana in the workplace amounted to undue hardship in light of the health and safety concerns related to this particular workplace.

The Tribunal also disagreed with Mr. Aitchison’s position that the employer’s “zero tolerance” policy was discriminatory. The Tribunal held that the policy was non-discriminatory because it did not impose automatic termination for breaches and, instead, gave the employer flexibility when considering requests for accommodation.

The Tribunal’s decision provides some guidance for employers in light of the pending legalization of recreational marijuana use in Ontario. Employers are advised to revisit drug and alcohol policies to ensure that they incorporate flexibility when considering requests for accommodation. Further, in light of the pending changes, such policies should contemplate recreational use of legal substances.