November 07, 2016

Medicinal Monday to Fridays: When Employees Are Under the Influence of Medicinal Marijuana

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The recent arbitration decision, Unifor, Local 2001 NB v Old Dutch Foods Ltd, 2016 CanLII 61672 (NB LA) Arbitrator Doucet addresses the emerging topic of managing medical marijuana in the workplace, combined with searches of personal employee property.   

The Facts

The Grievor, Rebecca Haines, worked at Old Dutch Foods Ltd. in Hartland, New Brunswick. On February 10, 2016 her employment was terminated because marijuana was found in her possession at the worksite.  While on her break in the lunchroom, the Grievor was observed accepting a “white container” from a co-worker, which she put into her coat pocket. The worker who observed this transaction found it suspicious and informed her supervisor. The “informer” and the supervisor returned to the now-empty lunchroom and noted the Grievor’s coat had been left on a chair. The informer searched the pockets and pulled out a “Motrin” bottle.  The supervisor asked the informer to open it and, together, they discovered a bag containing marijuana.

The Decision

UNIFOR argued that the employer had breached the Grievor’s privacy rights when it searched her coat pocket without her permission. Further, the Grievor alleged that she had medical authorization for the marijuana, so it was not an “illegal drug.”

Arbitrator Doucet allowed the grievance, in part. He held that there had been a violation of the Grievor’s privacy rights, however, he rejected the Union’s medicinal marijuana argument. The Grievor was reinstated, although she did not recover her lost pay or benefits, nor was she accredited for any loss of seniority.

In terms of the privacy violation, Arbitrator Doucet stated that, in the absence of an express or implied clause in the collective agreement, or an employer-instituted policy or past practice, there is no common law right for an employer to search employees or their belongings without their consent. In this case, the collective agreement did not expressly grant the employer such a right. There was also no policy dealing with searches and no evidence of a past practice that would allow it. Arbitrator Doucet also dismissed the argument that the employer’s management rights’ clause permitted personal employee searches. Ultimately, he concluded that an employee has a right to privacy that extends not only to their person, but to their belongings. In the absence of express or implied consent, the employer had no right to search the Grievor’s abandoned coat.

On the issue of marijuana, the Grievor tried to argue that she was not in “possession of an illegal drug” (a breach of the collective agreement), because she had medical authorization for marijuana use and possession. In this case, the medical authorization had, actually, expired. The Arbitrator concluded that the document: “Authorization to Possess Dried Marijuana for Medical Purposes,” had no legal value, due to its expired timeline.

Further, Arbitrator Doucet did not find the Grievor credible, due to conflicting evidence as to why she had marijuana in her possession at work. For example, when she was first confronted with the bottle containing the drug, she asserted that it must have been “planted” on her. She later changed her story, to assert that she had medical authorization for the substance.

What This Means for Employers

Checking employees’ personal effects may be justified in certain situations. However, the manner in which an employer conducts a search must protect the employee’s right to privacy. For example, an Employer might search an employee’s belongings under circumstances where the search is justified by legitimate concerns or probable grounds related to alleged theft or safety violations. However, the employer must ensure that the search is conducted in a systematic and non-discriminatory manner.

In Canada, possession of medical marijuana is controlled under the Access to Cannabis for Medical Purposes Regulations, which recently came into effect on August 24, 2016. The regulations allow individuals with certain illnesses to use marijuana to relieve their symptoms when other treatments for these conditions have been unsuccessful. Outside of this specific context, marijuana continues to be an illegal drug.

An employer is faced with striking the appropriate balance between an employee’s privacy and the health and safety of all other employees. Specifically, employers are required to accommodate the needs of an ill/ disabled employee; and also maintain a safe working environment, for all employees and, where, applicable, also maintain public safety in its operating.

Prescription marijuana should be addressed with the same approach as any other prescription used to treat an illness or disability, which can result in impairment.

A prescription does not necessarily result in impairment at the workplace.  Employers are obligated to accommodate employees who need medication to cope with a disability (even if it causes impairment up to the point of undue hardship). Employers are entitled to inquire, and employees have a duty to report, any impairment resulting from prescription medication use which may impact their safe functioning on the job. The parameters of such reporting could be established through workplace policies. Employers may require a physician’s note detailing the level of impairment experienced by the employee. Presumed impairment as a result of medical marijuana consumption may result in discrimination based on “perceived disability.” The level of impairment may vary greatly depending upon tolerance levels, body size, and dosage.  Some impairment may be acceptable in some positions.  Medical data is vital to verify whether accommodation is possible without undue hardship to the employer.    

All drug prescriptions, however, may not be possible to accommodate without undue hardship, especially for safety-sensitive positions and where significant impairment results from the prescription. In such situations, constraints to employment or even termination may be found to be non-discriminatory, if the employer can show that the required action is based upon a bona fide (“in good faith”) occupational requirement (BFOR).

In order to be a BFOR, the standard (e.g. work rule about prescription drug use) must pass the “Meiorin Test”. This three-part test requires that the rule be: i) adopted for a purpose that is rationally connected to the function being performed; ii) adopted in good faith; and iii) reasonably necessary to accomplish that purpose or goal. The employer must also demonstrate the worker cannot be accommodated, without undue hardship.

Employers are not expected to continue to employ or allow prescription drug use in the workplace, where the nature of the disability, or its treatment, notably increases the probability of health or safety hazards to themselves, other employees and/or the public. The employer, however, will bear the onus to demonstrate that the individual’s disability (or the effect of the drugs required to treat it) threaten safe operations.

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Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.