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Managing Marijuana in Construction Projects

Fasken
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"Do" Diligence: OHS/WSIB Newsletter

By: Norm Keith[1]

A recent decision of the Human Rights Tribunal of Ontario upheld the right of a contractor to dismiss an employee for using marijuana at work. Smoking marijuana cigarettes at work, by a worker performing restoration on a high-rise building, was contrary to the employer's policy. The worker claimed that he had a "right" to smoke marijuana at work due to a pre-existing medical condition. He also asserted that his "right to smoke medical marijuana" was protected by the Human Rights Code of Ontario. The employer's position at the hearing was that his employment was terminated for smoking marijuana in a safety-sensitive workplace.[2]

A detailed review of the facts indicates that the contractor was involved in restoration of high-rise buildings. The worker had been working on a swing-stage, outside the 37th floor of the building. He was observed by his supervisor smoking marijuana on a break. The worker did not deny using marijuana at work, but took the position that his supervisor had condoned the use of his marijuana in the past to get relief from pain associated with a degenerative disc disease.

The worker had obtained a medical authorization for cannabis, often referred to as "medical marijuana" in March 2015. His supply of marijuana came from his "homegrown" stock, as well as the medical authorization, approved by his physician.

The worker knew that there was a Zero Tolerance Policy pertaining to the use of "Intoxicating Drugs and Alcohol", including marijuana, at the workplace. This was a rule established and enforced by the general contractor on the Project as well as the trade contractor.

The Human Rights Tribunal Adjudicator did not accept the evidence of the worker that his use of marijuana had been condoned by the employer. He also rejected the worker's assertion that his employer failed to accommodate his request to use marijuana at the workplace. Further, the Adjudicator said, "I would not have found that the Applicant's preference for medicating at work was part of any reasonable accommodation".

The Human Rights Tribunal Adjudicator also went on to find the following three key principles:

  1. A trade contractor must reasonably be expected to follow the Zero Tolerance of Substance Use Policy of a General Contractor, including the prohibition of its employees from smoking marijuana on the job;
  2. There does not need to be evidence of actual impairment or a high level of impairment, before a health and safety concern may be raised at a construction project; and
  3. A Zero Tolerance of Substance Use Policy is not prima facie discrimination under the Human Rights Code.

As a result, the Human Rights Tribunal adjudicator was satisfied that the employer had reasonable grounds to terminate the worker's employment. There was no evidence to support the allegation and that the worker's termination had been the result of unlawful discrimination by the employer. The Human Rights Tribunal complaint was dismissed.

This case reinforces the fact that workers do not have an absolute right to smoke marijuana, including medical marijuana, in a safety-sensitive position in a dangerous workplace.

Another take-away from this decision, for both general contractors and trade contractors, is that they have a serious legal duty to provide a safe workplace for all workers. Safety can and will take priority over the rights of workers to use medical or recreational marijuana in the workplace.

The author strongly recommends that a comprehensive Fit for Duty Policy be developed and implemented by all employers who employ workers in safety-sensitive positions in potentially dangerous workplaces. The Fit for Duty Policy should include a zero tolerance for attending work under the influence or consuming any type of drugs at the workplace. Employers must also provide an employee assistance program to assist workers with addictions.


 

 

[1] Norm Keith, a senior partner at Fasken, is the leading Canadian Occupational Health & Safety lawyer in Canada and the author of Alcohol & Drugs in the Canadian Workplace (Lexis Nexis, 2nd edition, 2015). He can be reached at 416-868-7824 and 416-540-3435 or nkeith@fasken.com.

[2]  Aitchison v. L & L Painting and Decorating Ltd.