By Dirk L. Van De Kamer

Most people would be concerned if a person operating heavy road maintenance equipment in a large city was also a regular medical marijuana consumer, entitled by permit to consume a significant amount of marijuana on a daily basis.

In responding to this concern, a large municipal employer removed a long service employee from the workplace, citing concerns over public safety.  The employee challenged the removal, alleging discrimination on the basis of disability.

The employee had a medical marijuana permit from Health Canada, stemming from pain associated with degenerative neck disease.  While his permit allowed the employee to legally consume a large quantity of marijuana, he maintained that he only consumed a small amount each night.  Shortly after obtaining the permit, the employee notified his supervisors and was thereafter permitted to continue to operate heavy equipment for over a year.  When others in management later became aware of his marijuana use, he was removed from his safety sensitive position and accommodated elsewhere, pending investigation.

After a lengthy investigation and review, which spanned nine months and included a detailed IME Report with recommendations, the employer gave the employee a choice; he could either remain in his accommodated position (which did not involve any perceived safety risk) or he could commit to substance abuse treatment.

The union grieved, arguing that the employee was being discriminated against on the basis of disability, and sought his return to his former safety-sensitive position.  The union maintained that there was no evidence of workplace impairment or resulting poor performance and, therefore, no basis to prevent the employee from continuing to perform the safety-sensitive work.

The employer maintained that it was justified in holding the employee out of his safety-sensitive role on the basis that fitness to perform his work safely was a bona fide occupational requirement, having regard to the employer’s public safety obligations, both statutory and at common law.  The employer’s position appears to have been grounded in the belief that the employee had unresolved dependency issues.

The case proceeded by way of a panel and produced a dissenting opinion.

The majority found the employer’s investigation to have been flawed in several respects.  According to the majority, the investigation did not establish the employee’s dependency on marijuana (which would generally remove any human rights considerations from the analysis, but did not in this case), nor did it establish resulting performance issues or impairment while at work.  In the circumstances, the majority found the employee to have been wrongfully held out of his position for almost four years.

As a result, the majority ordered the employee’s return to his former position, with compensation and subject to a number of conditions (including random substance testing).

While the employee was not found to have had a disability stemming from marijuana dependency, the fact that he consumed marijuana in order to manage his pain-related (neck) disability, brought the accommodation analysis into play.  In such analysis, the safety-sensitive nature of the workplace was but one of the factors assessed.

The case is instructive to employers in that it emphasizes the importance of conducting a fair and accurate investigation and cautions against proceeding to investigate a matter with a desired conclusion in mind (the majority found the employer to have created the employee’s dependency issues).  The case also highlights the requirement that employers accurately assess the actual impact of marijuana consumption (or any other substance) on job performance, as reliance on impressionistic concerns will not likely suffice.

So, while most people may be concerned that the person operating heavy road maintenance equipment on their city streets is a habitual marijuana consumer, this concern alone is not sufficient to justify an employer eliminating that perceived risk through transfer to a less safety-sensitive role.  Rather, it seems, such justification must be found in evidence of actual workplace impairment and an inability to accommodate the (potential) harm that comes with such impairment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was originally published on mondaq.com.

Want to know more about marijuana in the workplace? September 19 is the last day to register for Marijuana in the Workplace – What’s The Diagnosis? webinar on September 21. Find out more.