No Evidence that ‘Contact High’ is a Disability: B.C. Tribunal
December 15, 2023
December 15, 2023
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
In Gendron v. Koppert Canada Ltd., 2023 BCHRT 173 the B.C. Human Rights Tribunal (the Tribunal) dismissed a complaint from an individual who alleged that she experienced a “contact high” from cannabis plants. The Tribunal held that the complainant failed to provide any evidence capable of proving that the symptoms she was experiencing were the result of a disability. As a result, the complaint had no reasonable prospect of success and did not warrant the time and expense of a hearing.
This decision demonstrates that, although the concept of disability is interpreted liberally by the Tribunal, it does have limits. There must be some basis for an actual medical condition. Furthermore, employers are entitled to ask for reasonable medical evidence to support a request for medical accommodation, and employees are required to participate in the accommodation process by complying.
The complainant – Patricia Gendron – worked as a technical consultant at Koppert Canada Ltd. Most of her work involved driving to agricultural facilities throughout the Lower Mainland and conducting site visits using a company car. During one of these site visits at a cannabis facility she reported to her employer that she was experiencing a “contact high” from exposure to cannabis plants which impacted her ability to drive and perform office work afterwards. Out of concern for her safety, Koppert removed her driving duties and company car.
Koppert asked Gendron to have her doctor complete a medical questionnaire in order to get more information about whether she had a medical condition and, if so, what accommodations were required. Her doctor reported that it was “unknown at present” whether Gendron had a medical condition preventing her from performing her full duties but noted that she was having difficulty focusing and was unable to concentrate. Therefore, the doctor recommended that Koppert provide Gendron with workplace accommodations.
Koppert found this information to be confusing and contradictory and requested further medical information. In the interim, Koppert offered Gendron temporary work in the office and warehouse or the option of being placed on an unpaid administrative leave of absence. Gendron asked to be placed on a medical leave of absence instead, but absent medical documentation to support this course of action, Koppert refused to do so. Koppert eventually placed her on an unpaid administrative leave.
Gendron asked to return to work on a portfolio that did not include cannabis clients. However, Koppert advised her that this was no longer possible due to the company’s shift towards primarily working with cannabis producers. Koppert also advised her that, given the medical concerns she had raised, it still required medical information to establish her fitness to perform duties that included driving.
Gendron then submitted two medical notes: one said she was unfit for normal work for eight weeks and the other said that she did not have any medical restrictions with her regular duties as technical consultant, or relating to her ability to operate a vehicle so long as she did not work with cannabis crops. Koppert found these notes to be contradictory and suggested that she attend an independent medical examination, and that in the interim she arrange for transportation between facilities.
Gendron took the position that she had been constructively dismissed. At this point she had been on an unpaid leave for just less than three months. Koppert continued to offer to engage in the accommodation process by having her work modified duties pending an independent medical examination, but Gendron refused this offer of accommodation and, instead, opted to file a human rights complaint.
The Tribunal interprets the concept of disability broadly, with a focus on whether the condition entails a certain measure of severity, permanence and persistence. In this case, the alleged disability was a “mild contact high” triggered by exposure to cannabis plants. Gendron’s doctor said it was unknown whether she had a medical condition, and Gendron said that medical tests had not identified the issue. Gendron speculated that the symptoms could be part of the long-term impacts of cancer treatments, but there was no evidence to support this theory. She did not provide a statement, affidavit, or any further medical evidence about her alleged disability to the Tribunal.
The Tribunal concluded that there was simply no evidence capable of proving that the “contact high” symptoms stemmed from a medical condition. Gendron therefore had no reasonable prospect of proving that she had a disability so as to be protected from discrimination under the B.C. Human Rights Code.
This decision confirms several key principles of the accommodation process under the B.C. Human Rights Code:
- In order to qualify as a disability there must be some evidence that the individual has an actual medical condition with a certain measure of severity, permanence and persistence;
- Employers are entitled to ask for reasonable medical documentation to support a request for medical accommodation in the workplace; and
- Employees are required to participate in the accommodation process by providing appropriate medical documentation and engaging in a dialogue about possible accommodations.