Workplace safety trumps right to use medical cannabis, court rules

The Supreme Court of Newfoundland and Labrador has upheld a labour arbitration award that endorsed an employer's refusal to employ a user of medical cannabis.

In International Brotherhood of Electrical Workers, Loc. 1620 vs. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48, the court addressed the accommodation of employees who use medicinal cannabis in safety-sensitive workplaces. This case tips the balance in favour of workplace safety and is being closely watched by employers across the country.

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The griever applied for labourer work on a large project involving the development of a hydroelectric generating facility in Labrador. He suffered from Crohn's disease and osteoarthritis and used medical cannabis to help manage his pain. Under prescription, he was permitted to consume up to 1.5 grams of cannabis with THC levels of 22 per cent on a daily basis. Conventional medicine was not an option to alleviate his pain.

The griever was offered employment on the condition that he successfully complete a pre-employment drug and alcohol test. This was like any other individual who was offered a job on the site, but he could not satisfy that condition.

The employer sought medical information from the griever and retained an independent medical expert. After thoroughly considering all of the information available to it and engaging in months of discussion with the griever's union, the employer declined to employ him because of concerns about workplace safety.

The union grieved the employer's refusal to employ the griever. It argued that the employer was unlawfully discriminating against him and had failed to accommodate his disability.

In a well-reasoned arbitration award, arbitrator John Roil dismissed the grievance. He found the labourer work in question to be safety-sensitive. The work was inherently hazardous and there was no non-safety-sensitive position available at or around the job site.

Roil then turned to the question of whether the griever could safely perform the labourer work after consuming cannabis. The arbitrator relied exclusively on expert testimony and the medical literature before him to conclude that the use of cannabis can impair the ability of a worker to function safely in a safety-sensitive workplace; that the impairing effects of cannabis can last up to 24 hours after use and those impairing effects may not be known to the user; and that there was no resource readily available to the employer to allow it to adequately and accurately test on-the-job impairment from cannabis.

The arbitrator concluded that it would be inappropriate to require the employer to assume the safety risk of employing the griever. He highlighted the requirements under the applicable occupational health and safety law and the unknowns around cannabis impairment. The inability to measure the griever's impairment posed an unmeasurable safety hazard and amounted to undue hardship for the employer.

The arbitration award was upheld on judicial review. The Supreme Court rejected the union's argument that the award was based on "stigma or stereotype attaching to cannabis users."

The issue was whether the employer was legally obligated to accommodate medical cannabis use by a worker in a safety-sensitive position. In the view of the court, the arbitrator had issued a "decision... within the range of reasonable outcomes" and had "based his findings on resolution of the evidence before him."

The court summarized and upheld the key conclusions of the arbitrator, including:

The duty to accommodate did not extend to a requirement that the employer accept a risk resulting from the possibility of impairment; and

The evidence of possible impairment put forward by the employer met its onus to demonstrate undue hardship, in part because the griever's treating physician had conceded the possibility of residual impairment beyond the initial four hours after use.

As of the date this article was written, no appeal had been filed with the Court of Appeal of Newfoundland and Labrador and it is unclear whether such an appeal will be filed.

Take-aways for employers:

1. Evidence is key. The outcome of this case flowed from evidence of the safety-sensitive nature of the work and the impairing effects of cannabis.

2. The residual effects of cannabis use can last up to 24 hours after consumption and possibly longer.

3. Employee self-reporting on cannabis use and its effects - and any medical evidence based on such self-reporting - is of limited reliability. Indeed, as is evident from this case, the impairing effects of cannabis may be unknown to the user.

4. The inability to accurately test for cannabis impairment may amount to undue hardship for the employer.

James Kondopulos is a founding member and partner at Roper Greyell, where he practises in all areas of employment and labour law. While every effort has been made to ensure accuracy in this article, it is for general information purposes only and does not constitute legal advice.

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