There are several legal issues that can be raised in the context of cannabis in the workplace. A recent Human Rights Tribunal of Alberta decision dealt with the issue of pre-employment drug testing and discrimination. Both employers and employees should be aware of the implications of the following decision: Greidanus v Inter Pipeline Limited, 2023 AHRC 31.
The Background and Context:
The complainant, Jason Greidanus, alleged that the respondent, Inter Pipeline Limited, discriminated against him on the ground of physical disability.
Mr. Greidanus was offered a job with Inter Pipeline with one of the stipulations of the contract being he underwent a pre-employment drug test. Mr. Greidanus failed the drug test due to cannabis (THC) in his system. Mr. Greidanus was diagnosed with Hashimoto’s disease which causes chronic pain, anxiety, depression and low energy. So, he used cannabis to treat himself. Mr. Greidanus was using CBD oil to help treat his condition, which he says did not impair him. However, at the time of the drug test, he had not received a prescription from a doctor. He does not smoke cannabis because of respiratory issues he has arising from a wildfire in Fort McMurray.
Due to this failed drug test, Inter Pipeline revoked their offer of employment. Inter Pipeline did not know of Mr. Greidanus’ disability when they revoked their offer of employment. At that time, there was merely a failed drug test, positive for THC in his system.
The Moore Test:
The commission applied the Moore test to determine if there was a prima facie discrimination in the workplace. The Moore test requires the complainant to establish, on a balance of probabilities, that:
(1) he has a characteristic protected from discrimination under the applicable human rights legislation;
(2) he experienced an adverse impact with respect to his employment; and
(3) the protected characteristic was a factor in the adverse impact.
1) He has a characteristic protected from discrimination under the applicable human rights legislation
Based on the evidence presented, the diagnosis of Hashimoto’s disease was considered a physical disability. Thus, he has a physical disability that is a protected ground under the human rights legislation which satisfies the first part of the test.
2) He experienced an adverse impact with respect to his employment
The second part of the test is also easily satisfied. Mr. Greidanus was to be hired and given a salary of $125,000.00, as well as other forms of compensation. Revoking the offer of employment is a clear adverse impact on the complainant.
3) The protected characteristic was a factor in the adverse impact
The third and final part of the test is the most challenging question to be answered in this case. Inter Pipeline was not aware of a disability or condition that Mr. Greidanus was using cannabis to treat.
There was also no evidence that it can be implied that Inter Pipeline ought to have reasonably known that Mr. Greidanus may have had a physical disability. He had numerous opportunities to inform the prospective employer of his disability and his usage of CBD oil to treat it. He did not disclose it before, during or after the job interview. He also did not disclose it even after he knew of the pre-employment drug test when he was given the conditional offer of employment. Lastly, he did not disclose it when doing the pre-employment drug test questionnaire, or to the third-party agency administering the test.
Therefore, his disability was not a factor in the adverse impact he experienced (revocation of employment offer).
The Duty to Inquire:
The employer may also have a duty to inquire before it takes any disciplinary steps when it is reasonably ought to be aware that there may be a disability or the conduct of the employee is reasonably sufficient to raise an employer’s suspicion that the employee has a protected characteristic. If the duty to inquire does arise, Inter Pipeline would have a duty to investigate a possible connection between cannabis and a potential disability.
Once again, Mr. Greidanus did not provide any evidence of a disability or evidence on which one can reasonably conclude that the respondent ought reasonably to know that the complainant had a disability or that there may be a connection between the complainant’s disability and the complainant’s inability to satisfy the pre-employment drug test requirement.
Thus, there was no duty to inquire.