This document summarizes key points from a presentation on accommodating medical marijuana in the workplace. It discusses the duty to accommodate under human rights law, including establishing discrimination, bona fide occupational requirements, and undue hardship. It reviews case law related to medical marijuana and outlines best practices for employers, such as having clear policies and processes for responding to accommodation requests and managing suspected abuse. Employers are advised to avoid stereotyping, consider human rights issues, and document all aspects of assessing and determining accommodations.

1. Medical Marijuana in the
Workplace:
Managing Challenges without
Going up in Smoke
Conference Board of Canada
February 21, 2017
Presented by
Stuart E. Rudner

2. Accommodating
Medical
Marijuana
What
employers
imagine
2

3. The Duty to
Accommodate

4. What is Discrimination?
“Adverse treatment of a person on the basis of
a protected ground”
 Direct & indirect
– “No Jewish applicants” vs “Must be able to work
on Saturdays”
– “Absolutely no marijuana on premises”
4

5. The law expects that:
1. There will be a real effort to
accommodate; and
2. There may be some hardship in
accommodating the request.
But BFOR is an exception, and
undue hardship is too far.
5
Bottom Line:

6. Bona Fide
Occupational
Requirements and
Undue Hardship

7. Bona Fide Occupational
Requirement
 Bona fide Occupational Requirement
(BFOR): a skill or characteristic that is essential
to a job, without which the job cannot be
performed
 If a barrier = a BFOR, the employer may not be
required to accommodate – high standard
7

8. 8
Plaintiff:
Establish prima facie discriminatory conduct
Employer: establish BFOR
1. Standard was rationally connected to job
performance
2. Honest and good faith belief of its necessity
3. Reasonable and necessary for legitimate
purpose
The Meiorin Test

9. Undue Hardship
 Duty to accommodate may not apply if it causes
undue hardship.
 High standard to meet
 Severe negative effects outweigh benefit of
accommodation
9

10. Undue Hardship
 Consider:
1. Financial Costs
2. Health and safety risks
3. Anything else that is
relevant
4. Breach of collective agreement is not
Human rights legislation trumps contract
10

11. 11
Responding to Accommodation
Requests

12. Rules
 Employers cannot dismiss
requests for accommodation out
of hand
 For any accommodation request
 onus is on employees to
provide detailed information
 employees are not entitled to
dictate preferred form of
accommodation
 employer can assess all options
and determine if any are
viable.
12

13. Accommodation
 Have process for assessment
 Process is to be 2 (or 3) way dialogue
 Request (medical) documentation if applicable
 Work with employee to understand needs and
limitations
 Understand how ground intersects with job
duties
13

14. What Can You Ask For?
Limitations on ability to carry
out job functions
Then:
 Assess need for accommodation
 Assess accommodation options
14

15. Employee Role in
Accommodation Process
 Star Choice Television v. Tatulea: employees
must participate in accommodation process
– Leave of absence for neck pain
– STD denied; employer offered six week
accommodation plan that employee refused to
participate in
– Employer’s attempts to discuss went unanswered;
employee terminated
– Arbitrator: employee did not live up to “his part of the
bargain”
15

16. What should accommodation
look like?
 Modified or shuffled duties if necessary
 Modified hours
 Leave of absence
 Telecommuting/working from home
 Provision of assistive equipment
16

17. Accommodating
Medical Marijuana

18. Health Canada estimates that
450,000 Canadians will
turn to using legal medical
marijuana by 2024
18

19. Same as any other medication?
 BUT…
 Different types of users
1. Casual User
2. Addicted User
3. Self-medicator
4. Licenced user
 Different types/strengths/impact of
marijuana
19

20. The (Case) Law
 Brown v Bechtel Canada: impossible to
accommodate where employee fails to disclose
marijuana prescription, condition etc
 French v. Selkin Logging: self-medicating employee
can be discriminated against but can’t accommodate
in absence of prescription
" I find a zero tolerance policy for marijuana would
satisfy the first two steps of the Meiorin test.
However strict application of the zero tolerance rule,
without consideration of accommodation, may
offend the Code in circumstances where the
individual may be legitimately using marijuana for
medical purposes

21. More Case Law
 United Steel Workers, Local 7656 v Mosaic
Potash Colonsay ULC: Er entitled to info to
determine if alternative treatments existed
 Lower Churchill Transmission: medical
note suggesting impairment for 4 hrs after
ingestion
21

22. And Even More Case Law
 Burton v. Tugboat Annie’s Pub: no discrimination
where terminating employer didn’t know
diagnosis
 Mobo Gymnastics Coach v. Gymnastics Club:
dismissal in spite of evidence of disability and no
effort to accommodate can = discrimination
22

23. Bottom Line
 Similar to other prescription
medication
 But diff ways marijuana gets
into workplace
 Diff levels of impairment
 Employee must show need for
accommodation
 Employer must then assess
23

24.  Remember Accommodating disability =
accommodating treatment
 Avoid stereotyping abilities of employees using
marijuana
 Educate yourself about use
 Prove that you have taken every step up to point
of undue hardship
 Documents all consideration / assessments
Avoid a Human Rights
Lawsuit

25. Designing a Policy
25

26. Design a “Marijuana
Policy”
 No need for specific policy – incorporate into
“Drug and Alcohol” or similar policy
 Address prescription medication
 Require reporting of use of any medication that
may cause impairment
 Address reporting mechanism, confidentiality &
privacy

27. Best Practices
 Have ONE process for responding to all requests
for accommodation
 Require appropriate documentation
 Assess need for accommodation
 Assess options
 DOCUMENT EVERYTHING
27

28. 28
Discipline and Dismissal

29. Manage Suspected
Abuse
29
 Put reporting procedure in place for
use/abuse during work hours
 Communicate disciplinary
consequences of policy breach
 Investigate properly before
action/dismissal
 Consider human rights issues

30. 30
Dismissals
 2 types: With cause or without
cause
 If with cause, no further
obligation to employee
 Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
 No “near cause”

31. Just Cause: What Does
the Employer Prove?
1. The alleged misconduct took place,
and
2. that the nature or degree of misconduct
warranted dismissal, bearing in mind all
relevant circumstances
Contextual approach
Proportionality is guiding principle
31

32. 32
Stuart E. Rudner
srudner@rudnermacdonald.com
York Region: 289-317-1300
Toronto: 416-640-6402
www.rudnermacdonald.com
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