THE EMPLOYERS' EDGE
Employer’s Decision to Refuse Employment to Medicinal Cannabis User Supported by Arbitrator
On August 1, 2018, the government’s plan to legalize recreational marijuana will come into effect and employers will be faced with questions about how to manage cannabis in the workplace, whether medicinal or not. And while case law on the issue has been somewhat scarce to date, we are now starting to see adjudicators tackle cannabis use more regularly.
A recent example is the decision in Lower Churchill Transmission Construction Employers’ Association and IBEW, Local 1620, where an Arbitrator dismissed an employee’s grievance after he was refused employment in a safety sensitive role based on his use of medicinal cannabis in the evenings.
In this case, the Grievor was prescribed medicinal cannabis to treat his osteoarthritis and Crohn’s Disease. He consumed 1.5 grams every evening and reported pain relief and no impairment by the following morning.
The Grievor sought employment as a Utility Worker and Assembler at the construction project for a hydroelectric power generation facility. Once his medicinal cannabis use became known, the employer did not offer the Grievor either role.
The Union took the position that the Grievor was sufficiently qualified to perform both roles and that the employer failed to accommodate the Grievor when it did not individually assess the Grievor’s abilities and restrictions. To that end, the Union argued that the Grievor had previously worked on the same project for a different employer, without issue, in similar roles while medicating with medicinal cannabis.
The employer took the position that accommodating the Grievor constituted undue hardship. It argued that both roles sought by the Grievor were safety sensitive and therefore accommodating the Grievor in either role would run contrary to the employer’s duty to provide a safe workplace. The employer further argued that it could not ensure the Grievor would be working without impairment, given the current difficulties in measuring cannabis-related impairment. The employer went on to argue that the fact the Grievor had worked on the same project previously for another employer was not an indication that accommodating the Grievor in such roles would be safe. The employer instead took the position that this merely demonstrated good fortune that a serious incident had not previously occurred on site.
The Arbitrator found that both roles sought by the Grievor were safety sensitive, in that they demanded the worker’s undivided focus and high requirement for mental alertness. Otherwise, injury to the worker or fellow employees would inevitably occur.
With respect to accommodation, the Arbitrator held that accommodation to the point of undue hardship requires an individualized assessment as opposed to a blanket rule. However, despite the Grievor’s own doctor’s evidence that he would not be impaired by the following morning, the Arbitrator was satisfied that THC is known to effect judgment and motor skills, and that THC can, and does, cause impairment. The Arbitrator cited Health Canada’s and the College of Family Physicians of Canada’s views that depending on the dose, impairment from THC can last more than 24 hours after last use and that the ability to drive or perform activities requiring alertness may be impaired up to 24 hours following a single consumption. The Arbitrator stated:
2. A general practicing physician is not in a position to adequately determine, simply grounded on visual inspection of the patient in a clinic and a basic understanding of patient’s work, the daily safety issues in a hazardous workplace. Specialized training in understanding workplace hazards is necessary to fully understand the interaction between cannabis impairment and appropriate work restrictions in a given fact situation.
The Arbitrator ultimately dismissed the grievance stating:
The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the jobsite. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer
This is a positive decision for employers because it suggests that an employer does not have to blindly accept a physician’s viewpoint with respect to level of impairment of medicinal cannabis users. However, in order to avoid legal exposure, employers ought to ensure that they continue to assess accommodation to the point of undue hardship on a case by case basis, regardless of whether medicinal cannabis use is involved or not.
To remain up to date with the latest developments, requirements, and considerations to deal with cannabis in the workplace, consult the professionals at CCPartners who can help employers navigate all accommodation issues.
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