Employer ban on medical cannabis was discriminatory, arbitrator says

In December 2021, an Ontario arbitrator ruled that an employer’s total ban on medical cannabis for a safety-critical position was discriminatory. Specifically, an Ontario Labor Board arbitrator ruled that the employer, Ornge, should attempt to accommodate an aircraft maintenance engineer in Timmins who had been prescribed medicinal cannabis.

The employer, Ornge Air of Timmins, Ontario, is a not-for-profit provider of critical care air ambulance and ground ambulance services. In addition, because it operates fixed-wing aircraft and helicopters, Ornge is subject to federal laws and regulations.

According to Sharaf Sultan, a labor lawyer and director of Sultan Lawyers in Toronto, the decision was not surprising.

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

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

The worker then informed Ornge and was placed under the workplace accommodation policy. Additionally, he was relieved of his usual duties, which included safety-critical work.

After returning from vacation, the worker was assigned temporary non-aircraft safety related duties, which continued until February 2021. Subsequently, Ornge sought advice from an independent medical expert, who had prepared a report indicating that the worker was taking cannabis. with much higher THC levels than previously known.

“He would not be fit to perform his duties for his security-sensitive work,” the expert’s opinion concluded, as THC takes a long time to leave the system.

As a result, Ornge determined that the worker violated the zero tolerance drug and alcohol policy and sent him home. The company assumed that the worker could not meet the job requirements if he used cannabis outside of normal working hours.

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

Additionally, the union filed grievances alleging that Ornge discriminated against the worker because of his disability by refusing to schedule him to work, and that the drug and alcohol policy was discriminatory with respect to the use of medically prescribed cannabis.

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

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

Finally, the arbitrator determined that Ornge’s drug and alcohol policy was unreasonable because it treated prescribed medical cannabis differently from other prescription drugs. The arbitrator also ruled that it was discriminatory treatment for employees with medical disabilities requiring treatment with medical cannabis, and that it violated the collective agreement and the Canadian Human Rights Act, a said the referee.

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

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

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