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Accommodating workers who use marijuana

Employers have a duty to accommodate workers who are disabled, up to the point of undue hardship or where a bona fide occupational requirement (BFOR) exists. The situations in which an accommodation must be granted vary depending on the specifics surrounding the disability and the accommodation sought. Failure to accommodate a worker could result in legal action and a human rights complaint.

Recently, a worker in British Columbia began an complaint against his employer after it refused to accommodate his use of marijuana on the job.

The worker, who was employed by a logging company and sometimes operated heavy machinery, said that each day he smoked up to eight joints to manage the pain he suffered as a result of having cancer. After multiple complaints from other employees and a truck accident - which led to the discovery of marijuana in the truck - the man was dismissed from his job. During a conversation with his employer, he did not agree to be drug-free while at work.

The man filed a complaint regarding the matter which was heard by the B.C. Human Rights Tribunal. The tribunal dismissed the employee's complaint earlier this month. In reaching that decision the tribunal found several things, including a lack of:

  • evidence that the employee used the marijuana for medical purposes;
  • documentation, such as a "marijuana card," that authorized the use of the drug for medical purposes; and
  • proof that the marijuana he was using was non-impairing medical grade marijuana.

In its decision the tribunal indicated that the employer could not accommodate the man's use of marijuana at work without medical or legal authorization.

The growing use of medical marijuana poses challenges for employers that counsel with knowledge of human rights law can assist with.

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