The article set out below is a summary of information presented by Professor Lynk at his presentation given to the Public Service Alliance of Canada in September, 1999.
The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.
She alleged wrongful termination for various common law and statutory claims, including disability discrimination.
Specifically, the claim alleged a failure to “reasonably accommodate” her Crohn’s disease, and her medically certified off-duty use of marijuana to treat that illness.
The question remains, how should employers reconcile their internal policies with the laws requiring employers to accommodate employees with certain medical conditions? The Massachusetts’ Supreme Court recently became the highest court in the nation to apply a general disability anti-discrimination protection to medical marijuana use.
In , an entry-level sales and marketing employee filed suit after she was terminated for failing a mandatory employee drug test.
That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons.
Prior to reacting to an employee’s marijuana use, employers are well advised to consult with counsel.
Editor's Note: Editor's Note: Michael Lynk is a professor of law at the University of Western Ontario.
These two decisions reverse the previous case-law in this area, including decisions from Colorado and Washington, where the courts dismissed complaints brought by medical marijuana users who had been terminated for drug use.
Employers in all jurisdictions should monitor these issues since the case-law is changing rapidly.