THE QUESTION

I am a legal medical-cannabis patient who has been using CBD (cannabidiol) for two years because of a painful illness. I made my employer well aware – they have no policy, nor did they ask me any questions. On the day of termination, I was told that the regulations do not apply for this company. I worked behind a desk, not in a safety-sensitive position, but they have recently hired a manager with a hate-on for CBD.

THE FIRST ANSWER

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Greg Conner

Vice-president and corporate secretary, BC Transit

Whether we are transit operators, office workers, or heavy-equipment operators, our employers are reasonably entitled to expect we are not impaired when we come to work, no matter the source of impairment. That being said, medical cannabis – including CBD – has created a challenge for both employee and employer, because it is still unknown to many people.

From what I can see, you handled the situation correctly – you disclosed the medication you were taking (in this case, CBD) and provided your employer with details on it. As our understanding of medical cannabis evolves, employers and employees will continue to find themselves reviewing workplace cannabis use largely on a case-by-case basis. Perhaps in the future, we will have a fast, easy and inexpensive way of assessing impairment on the job. Until then, open dialogue with your employer is always the best policy.

Your new manager should have asked themself: Can the employee perform their duties safely and productively while taking this medication? Your manager, likely, does not know much about CBD. They are obligated to better understand your situation, determine if the medication you are taking is because of a disability, and definitely should have sought expert medical advice before taking such a drastic step. What's next depends on your employment situation. If you are a union member, you have rights inherent in your collective agreement, so speak to a representative right away. If you are not, you are now left with a choice. You can contact the Labour Board or Human Rights Tribunal, contact legal counsel to sue for wrongful dismissal, or (and I do not recommend this) you simply can walk away and look for a more understanding employer.

THE SECOND ANSWER

George Cottrelle

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Partner, Keel Cottrelle LLP

Employees in Canada with a disability, requiring prescribed medication from a licensed medical practitioner, including CBD, are entitled to reasonable accommodation from their employer and are protected from discrimination in employment.

Employees have an obligation to provide their employer with all necessary information relating to their disability, to enable the employer to fully assess the accommodation required. In the case of CBD, which is a controlled substance, an employer could request the medical documentation prescribing the medication, and information as to any potential impairment, in order to assess if there are any workplace safety or productivity concerns in granting the requested accommodation. Employers have a duty to provide reasonable accommodation unless it causes undue hardship.

You properly disclosed to your employer at the commencement of employment, your requirement to use CBD in the workplace because of debilitating pain from your illness. Apparently your employer made no inquiry as to your requirements for accommodation, or the possible impairment side effects from your use of CBD. Your employer had a right to make appropriate inquiries to assess your continuing accommodation requirements for the use of CBD in the workplace, but firing you for requiring medical CBD was discriminatory termination, contrary to applicable human-rights legislation in your jurisdiction.

You may file a claim with the applicable human-rights tribunal for damages for discrimination and reinstatement. You may also commence civil proceedings for wrongful dismissal. You need to be advised of the applicable time limitations for both applications in your jurisdiction.