First, in 2015, there was French v. Selkin Logging. French was an employee with cancer who worked for Selkin Logging as a heavy equipment operator and would smoke marijuana on his breaks for treatment of his cancer pain. French had no prescription and did not officially disclose his marijuana use to his employer. One day after a marijuana smoke break, French was driving his truck and hit a moose. During the investigation of this most Canadian of incidents, marijuana was found in French’s truck. When asked to stop smoking marijuana French refused and Selkin terminated French who then filed a human rights complaint.

How could Selkin Logging have fared better in this case? When you know about employees marijuana use, intervene early before costly incidents occur and give due consideration to an employee’s case instead of abruptly terminating them. This will increase their sense of being treated fairly and lessen the probability they will drag the employer into a courtroom, which was noted in the judge’s decision as a big contributing factor to French’s legal action. This was a result of the companies no tolerance policy towards marijuana. Although the court did confirm this policy as fair, considering the safety sensitive nature of the work, it resulted in Selkin immediately terminating French without getting a chance to document accommodation considerations, making its court performance less than ideal.

Next is Old v. Ridge Country Contracting. In this case, the complainant, Old, did go through the proper channels of getting his certification and disclosing to the employer. When Ridge Country Contracting received this information, it displayed of great need for remedial human resources training when it came to the conclusion: “Seizures and marijuana? You’re fired!” No investigation or accommodation consideration was given and that’s the reason why Ridge now faces a full hearing.

How could have Ridge fared better? By doing an investigation and engaging the employee in the accommodation process. This is the only way to secure the existence of a bona fide occupational requirement for being marijuana free.

And then comes Calgary v. CUPE 37. This one had medical authorization and notified the employer who then took no action for over one year, but after a change in leadership, suddenly removed the employee from safety sensitive duties. Soon after, the worker was sent for an independent medical evaluation that concluded the worker was able to do safety sensitive work as long as he didn’t smoke four hours before the start of his shift. Interestingly, the medical evaluation also recommended that the worker be subject to a number of urine tests to establish “baseline THC levels” with repeat testing to be done to ensure the worker didn’t develop a dependency. There is no scientific evidence to confirm the efficacy of this and it was shot down in arbitration.