Although there is little case law on medical cannabis use in the Canadian workplace, there are a few cases that can guide both employees and employers on this topic.

Today we look at the case of Wilson vs. Transparent Glazing Systems. Gregory Wilson was employed as a glazier and held a medical cannabis prescription for chronic back pain and migraine headaches. His employer was aware of his back pain and that he took medication for his disability.

The Project Superintendent of the job site where Wilson was working sent a fax to his employer, Transparent Glazing Systems. The fax indicated it was suspected that he was impaired by the medication he was taking. The employer acted on the fax about the suspected impairment from the medical cannabis, terminating Wilson's employment.

The employer stated that his was fired because of his temper, lack of productivity and generally poor attitude in the workplace. Wilson filed a complaint alleging that the employer discriminated against him on the basis of physical disability and his use of medication. The British Columbia Human Rights Tribunal agreed with Wilson and directed the employer to stop its discriminatory practices. Wilson was also awarded a small amount in damages. However, the Tribunal upheld the termination because it was found he would have been fired nevertheless because of his incompetence.

What went wrong?

One of the main issues is the employer used the complaint from the Project Superintendent related to Wilson's medical cannabis use to initiate his termination when its obvious there were performance issues that were a large concern for the employer. If an employer fires a disabled employee for poor performance, they need to show that the decision was based on the performance alone and not impacted by the disability.

Why? Because the employer has a duty to accommodate an employee with a disability and cannot simply fire them as a result of the disability. In this case, the employer muddied the waters by firing Wilson when the complaint about his medical cannabis use was made (which is discriminatory) and then stated they terminated him because of poor performance. If they had simply dealt with his poor performance and acted on that alone, they likely would have avoided the discrimination allegations.

The other issue here is the employer didn't talk with Wilson about his disability and medication in an attempt to understand the situation. They simply moved straight to termination when the cannabis complaint was brought forward. This shows that they didn't investigate whether Wilson's poor performance was a result of his disability or try to accommodate him, resulting in discriminatory practices.

What employers can learn about this case

An employer who is managing performance issues with an employee should document those problems exclusively and keep them separate from other issues, especially when the employee could claim discrimination. The onus is on the employer to investigate a disabled employee's poor performance and determine if its a result of the disability or not. If performance problems are directly related to the disability, then the employer has a duty to accommodate.

In Canada, employers have a duty to accommodate employees who are prescribed users of medical cannabis, to the point of undue hardship.

Alison McMahon is a workplace expert based in Alberta, Canada and the Founder of Cannabis At Work. Follow her on Twitter and LinkedIn where she provides overdue commentary on weed + work.

