Employee didn't work with employer to determine what accommodations were suitable
Feeling “off” and having a “contact-high” after visiting a cannabis-production facility is not a disability that requires accommodation by an employer – and not providing an accommodation for those sensations is not a violation of the Human Rights Code.
The British Columbia Human Rights Tribunal recently dismissed a complaint brought by Patricia Gendron against her former employer, Koppert Canada Ltd. (2023 BCHRT 173), that was spurred by those issues.
Not being able to prove that whatever she felt amounted to an actual medical condition, let alone a disability, led to the ruling, explains employment and labour-relations lawyer Carman Overholt, managing partner at Vancouver-based Overholt Law.
“The application to dismiss is really quite an exceptional remedy. That’s only granted in the clearest cases – cases where the counsel for the respondent can show that there is no reasonable prospect that the complaint will be successful.”
Gendron’s failure to provide either her former employer or the tribunal clearly documented medical evidence of her condition prevented the tribunal from making any other ruling, says Overholt.
As part of her job, Gendron had use of a company car so that she could visit clients, including a cannabis-production facility, but after spending approximately 10 hours per week at the site, she said she was unable to return to the office and perform her duties. Gendron claimed that a police officer told her she shouldn’t be driving anywhere other than straight home due to her exposure.
Gendron requested that her duties be changed so she didn’t have to manage any cannabis clients. Koppert said that given its current client list, that was impossible if she were to continue performing as a technical consultant. It provided her with the option of taking an unpaid administrative leave or working in the warehouse at a reduced salary.
Gendron offered notes from her doctor, but the company found them confusing as one stated she needed accommodations to not work with cannabis clients, but the other said she “‘does not have any medical restrictions with her regular duties as a Technical Consultant’ or ‘relating to her ability to operate a vehicle.’”
The company requested further medical documentation and offered another modified work plan. Gendron failed to respond and eventually submitted a letter saying she believed she had been “constructively dismissed and, as a result, was resigning her position.”
Gendron filed a human rights complaint with the tribunal alleging Koppert reassigning her and taking away the company car was discrimination based on a disability, in violation of s. 13 of the Human Rights Code. Koppert argued that Gendron didn’t have a disability and despite that it undertook a reasonable accommodation process.
The tribunal wrote that “Considering this evidence, there is no reasonable prospect that the Tribunal would conclude at a hearing that any effects Ms. Gendron were experiencing from exposure to cannabis arose from a disability. In fact, there is no evidence capable of proving that it stemmed from any medical condition. In this situation, her complaint has no reasonable prospect of success.”
As Overholt explains, Gendron failed to put forth an argument as to why she needed accommodations or what her actual disability was supposed to be.
“There’s no definition in the legislation of a disability. It has to be proven through evidence,” he says
“If someone says, ‘I just had a feeling that I was high after I worked at the cannabis facility,’ that in and of itself, without medical evidence saying that there is a medical condition, doesn’t reach the level of becoming a disability that would be recognized by the tribunal.”
What he says commonly happens is that in wanting to support their patients, doctors sometimes submit documents to employers that are light on provable medical facts – facts that can be used to determine what, if any accommodations are needed to allow an employee with a disability the ability to continue to do their job.
“It’s important to appreciate that and distinguish what may be advocacy and support for an employee from what is really a medical opinion. What was absent from the case and problematic for the complainant was the fact that there wasn’t medical evidence of a disability…. And it does emphasize the importance of good, clear medical evidence of a disability, and work restrictions that result from that medical condition, because the law is very supportive of individuals with any form of mental or physical disability.”
He adds that the other notable element of this decision was the need for both an employer and an employee to work together in good faith to create accommodations. Overholt points to Gendron’s inflexibility as another reason the tribunal dismissed her complaint.
“The accommodation process is really a two-way street in the sense that employees must be reasonable and must cooperate in the accommodation process,” he says, stressing that the employer did put forward an effort to understand Gendon’s health situation based on input from her and from medical professionals.
“The complainant didn’t allege that the employer based its decision on a perception of disability, because that can be a breach of the Human Rights Code.”
