Employer’s ban on medical cannabis was discriminatory, says arbitrator

Mar 8, 2022

In December of 2021, an Ontario arbitrator ruled that an employer’s total prohibition of medical cannabis for a safety-sensitive position was discriminatory. Specifically, an Ontario labour board arbitrator had ruled that the employer, Ornge, must attempt to accommodate an aircraft maintenance engineer in Timmins who had been prescribed medicinal cannabis.

The employer, Ornge Air in Timmins, Ont., is a not-for-profit provider of air ambulance and critical-care land ambulance services. Moreover, since it is an operator of fixed-wing aircraft and helicopters, Ornge is subject to federal legislation and regulations.

According to Sharaf Sultan, an employment lawyer and principal of Sultan Lawyers in Toronto, this decision was not surprising.

“Many employers may think that if they say they have a zero-tolerance policy that it’s black and white, but in context of human rights, that isn’t usually the case,” Sultan said in his interview with Canadian HR Reporter.

In 2018, the worker was diagnosed with an anxiety disorder. Although he had tried three different medications, they had all caused significant side effects. In April 2020, he was prescribed medicinal cannabis to treat his anxiety disorder.

The worker then informed Ornge and was placed under the workplace accommodation policy. Furthermore, he was removed from his regular duties, which included safety-sensitive work.

After the worker returned from his vacation, he was assigned temporary duties not related to aircraft safety, which continued until February of 2021. Subsequently, Ornge had sought counsel of an independent medical expert, who had prepared a report that said the worker was taking cannabis with much higher THC levels than previously known.

“He would not be fit for duties for his safety sensitive job,” the expert’s opinion concluded, since THC takes a long time to leave the system.

Consequently, Ornge determined that the worker was violating the zero-tolerance drug and alcohol policy and sent him home. The company assumed the position that the worker could not meet the job requirements if he was consuming cannabis outside of the normal shift hours.

The worker received paid sick leave for two weeks and then received short-term disability benefits, which paid him 75% of his salary.

In addition, the union filed grievances claiming that Ornge discriminated against the worker due to his disability by refusing to schedule him for work, and that the drug and alcohol policy was discriminatory relating to the use of medically prescribed cannabis.

According to the arbitrator, Ornge took reasonable steps in the first phase of its accommodation of the employee by providing him a temporary position.

The arbitrator noted that the IME doctor said that the worker would not be fit for his safety-sensitive job on his prescription, but she did not state that a zero-tolerance standard was required for a safety-sensitive position, rather than adjustment to the prescription or some other form of accommodation.

Finally, the arbitrator determined that Ornge’s drug and alcohol policy wasn’t reasonable, since it treated prescribed medical cannabis differently from other prescription drugs. The arbitrator also ruled that this was discriminatory treatment for employees with medical disabilities requiring treatment with medical cannabis, and it breached the collective agreement and the Canadian Human Rights Act, said the arbitrator.

According to Sultan, the decision is a cautionary tale against inflexible zero-tolerance policies.

“I think you’re in a much better position as an employer to leave the window open slightly, unless it’s clear that it is impossible to accommodate. It’s possible that there are scenarios in which that could be the case, but it’s hard to imagine many of them. I think you’re in a better position as an employer to just draft policies that have flexibility built in, and then you absolutely can say no if you investigate it [and accommodation isn’t possible].”