How far do you need to go to accommodate an employee?

Another day at the office, and Bob is toking up in the bathroom again. He’s got a permit but still gets the stink eye from the boss. Meanwhile Sheila is popping Tylenol 3s for her chronic headaches, which nobody seems to mind. Farid, who’s blind, arrives with his seeing eye dog, while Pamela, who is anxiety-prone, has acquired a certificate authorizing her fox terrier Muffy as a service dog, too. Meanwhile Kim—that would be Kentucky county clerk Kim Davis—won’t issue marriage licences to gay couples, claiming it offends her religious beliefs. 
 

Who among them deserves to have their needs accommodated? And just what are a B.C. employer’s obligations to employees with special requirements?
 

Recently the debate has been driven by the issue of medical marijuana. In 2013 New Brunswick RCMP corporal Ron Francis appeared on CBC TV smoking marijuana, which he said he needed for PTSD. It didn’t go over well. Cpl. Francis was ordered to turn in his uniform, and then-justice minister Peter MacKay later said he set “a poor example for Canadians.” In 2014 Francis committed suicide. The tragic case threw light on the issue of just what employers are obligated to do for employees with special requirements.
 

Brandon Hillis of Roper Greyell LLP, a Vancouver law firm specializing in employment and labour law, says the employer’s responsibility is to not create “undue hardship” for the employee. But just what constitutes undue hardship is as foggy as a cloud of exhaled smoke. “There is no bright-line test,” Hillis says, “and what constitutes an undue hardship for one employer may not constitute undue hardship for another. Human rights tribunals and arbitrators will give consideration to a variety of different factors including the cost of potential accommodations, the interchangeability of the workforce and the size and means of the employer, and will generally require firm evidence.”

The same seems true of service animals. A seeing eye dog is one thing, but a Muffy-makes-me-feel-better dog is another matter. Nor can you get a licence for a service parrot or service hamster. “As there is currently no recognized training standard for therapy dogs or animals other than dogs,” the BC Guide Dogs and Service Dogs website says, “they are not eligible for certification at this time.”

You are still free to insist you would die without Muffy at your side. If there’s an objection, you could then make your case to the BC Human Rights Tribunal. You would have to establish you have a disability and need the animal to accommodate that disability in an area of daily life covered by the human rights code, advises B.C.’s Ministry of Public Safety and Solicitor General. Your employer would then be given the opportunity to show how they have accommodated you or why they can’t. 

As for medical marijuana users, Hillis says they can expect to endure extra scrutiny. “Because of the ease with which medical marijuana can be obtained, and because it is a popular recreational drug, employers faced with an employee who arrives at work with documentation entitling them to use medical marijuana are often skeptical, and deservedly so.” The skepticism results from the ease of gaining accreditation. The regulations do not require a doctor’s prescription, just a “medical document” from a healthcare practitioner. Nor do they require evidence of medical examinations or that medical marijuana is the best or only available treatment for the individual. 

Still, Hillis warns, employers find themselves in trouble because they do treat medical marijuana differently than other medications, often by attempting to prohibit its use outright and by terminating users while permitting the use of other painkillers by employees. 
 

Pain relief is one thing. But whether you are placing your immortal soul in peril can also fall within the legal realm. Last year, when Kentucky county clerk Kim Davis refused to issue marriage licences, she insisted she was following “God’s law.” Davis spent five days in jail for refusing to obey Kentucky law, but then she was back at work—and back to refusing licences. How did Davis manage to merit that sort of workplace accommodation? Simple: she was elected.