The Newfoundland & Labrador Court of Appeal recently overturned an arbitration decision which found that an employer’s inability to measure current impairment from cannabis constituted undue hardship and determined that an employer’s inability to measure present impairment from cannabis will not always justify a decision not to hire an employee with a prescription for cannabis into a safety-sensitive position.
The Grievor, who was a member of IBEW, Local 1620 (the “Union”) applied for two (2) positions with Valard Construction LP (the “Employer”), a major contractor working on the Lower Churchill hydroelectric project. The Grievor suffered from pain as a result of osteoarthritis and Crohn’s disease and had tried a number of conventional treatment methods without success. He was eventually prescribed cannabis by a physician at a medical cannabis clinic which he ingested using a vaporizer in the evenings, providing him with relief from his symptoms and according to the Grievor, did not have impairing effects.
Prior to pursing employment with the Employer, the Grievor was employed by another subcontractor working on the Lower Churchill project at which time, he has been using medical cannabis. He advised his previous employer of his prescription and use and was permitted to continue working in a safety-sensitive position. Shortly thereafter, he applied for the Utility Person position with the Employer and was offered the position subject to a satisfactory drug and alcohol test. The Grievor advised the Employer of his medical cannabis prescription and use and the test was positive for THC. The Employer, on the advice of its medical consultant, sought further medical information from the Grievor’s prescribing physician. The physician provided information about the dosage as well as the restriction on the Grievor that he not drive for four (4) hours following use, and her opinion that the Grievor’s daytime function was not impacted.
The Employer found this information to be insufficient and requested further information via a questionnaire. The prescribing physician provided a response to the questionnaire and the Grievor also provided a note from his family physician. While the Employer was considering this information, the Grievor tried to apply for another position with the Employer but was advised he would not be considered for this position as the Employer was awaiting satisfactory medical information. The Employer then received a third report from the prescribing physician. However, since the issues had not been resolved, the Union filed a grievance on behalf of the Grievor alleging that the Employer failed to accommodate the Grievor’s disability in employment at the Lower Churchill project.
The Union alleged that the Greivor was qualified and fit for work and that the Employer wrongfully refused to offer the Grievor employment by failing to accommodate him and by not conducting an individual assessment. The Employer took the position that both positions applied for were safety-sensitive and that it had an obligation to provide a safe workplace, and allowing the Grievor to work while impaired was prohibited by law. The Employer argued that it met its obligation to accommodate by individually assessing the Grievor’s case and argued that the safety risks added to the workplace by the Grievor’s medical cannabis use brought the Employer to the point of undue hardship as the risk of impairment from cannabis use was real and there was no way to measure current impairment.
At the hearing, the Arbitrator determined that both positions the Grievor had applied for were safety-sensitive but that the Grievor had a disability requiring accommodation and that an assessment based on the individual needs of the employee is required in order to determine possible accommodation. The Arbitrator further concluded that undue hardship does not mean that the Employer must eliminate all risk in the workplace.
The Arbitrator concluded that because there is an inability to measure present impairment, the risk associated with any residual impairment from the Grievor’s medical cannabis use could not be adequately monitored or ameliorated. Therefore, undue hardship would result if the Grievor was permitted to work in the positions in question. As a result, the Arbitrator concluded that the Employer accommodated the Grievor to the point of undue hardship and dismissed the grievance.
For further details regarding the facts of the case and the arbitration decision, please see our previous In A Flash article Inability to Measure Current Impairment Means Risk Can’t be Managed: Employer’s Refusal to Hire Employee with Medical Marijuana Prescription on the Basis of Undue Hardship Upheld.
The Union brought an application for judicial review of the decision, arguing that the Arbitrator erred by determining that the risk of impairment lasted longer than the Grievor’s physician believed; applying a reverse onus of proof and alleging that the Employer’s actions and the Arbitrator’s decision perpetuated the stigma and stereotypes associated with cannabis users. The application judge rejected the Union’s arguments, finding that the Arbitrator’s decision was reasonable and upheld his decision, dismissing the application for judicial review.
The Union appealed the decision of the application judge to the Newfoundland & Labrador Court of Appeal (International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20 (CanLII)), arguing that the application judge erred in concluding that the Employer accommodated the Grievor to the point of undue hardship.
The Court of Appeal overturned the decision of the Application Judge but with three different opinions.
Welsh J.A., concluded that where no test or standard to measure impairment exists, the Employer was required to demonstrate that to assess the Grievor’s impairment by some other means on a daily or periodic basis would result in undue hardship in order to establish that it had accommodated the Grievor to that point. Welsh J.A. focused on the individual assessment of the Grievor’s situation, noting that simply because there is no test to measure impairment does not mean that by ingesting medical cannabis, the Grievor was incapable of performing the job safely.
Furthermore, she noted there is a danger in treating impairment from the use of medical cannabis on the basis of a class of individuals who use it, given the individual nature of possible accommodations and therefore, the analysis requires an assessment regarding what alternatives were investigated by the Employer that may have allowed for individual testing of the Grievor, for example, whether scientific or medical standards were the only option and if so, why; what other options such as a functional assessment prior to each shift, were identified and if not, why were they not implemented. Welsh J.A. found that the Employer failed to address such questions or provide the evidence necessary to discharge the onus of demonstrating that accommodation of the Grievor on an individual basis would result in undue hardship. In light of this, the Arbitrator’s decision was unreasonable because he failed to address the Employer’s onus to establish that to accommodate the Grievor on an individual basis would result in undue hardship.
The two other justices making up the panel also wrote separate reasons for decision. Butler J.A. concurred with Welsh J.A., while Hoegg J.A. dissented.
In her concurring reasons, Butler J.A. focused on the Employer’s drug and alcohol policy, which both the Arbitrator and the Application Judge found was of little relevance. Butler J.A. found the policy to be relevant as it established the bona fide occupational requirement (“BFOR”) standard, which she noted was confused with the purpose of the BFOR in the arbitration decision. In hew view, the BFOR standard was the cut-off levels of THC prescribed by the policy and the purpose of that standard was site safety.
Butler J.A. went on to note that the focus of the arbitration decision was how to reliably measure possible impairment rather than the Grievor’s ability to perform the job duties or modified duties while using medical cannabis. As a result, the Grievor was effectively required to establish a reliable means of measuring possible side effects of medical cannabis, shifting the onus of proof for the BFOR from the Employer to Grievor which was an error of law. Lastly, Butler J.A. concluded that without considering whether the Employer had investigated alternative approaches such as testing against a more individually sensitive standard; established the need to have all employees taking medical cannabis meet the cut-off levels in the policy (which she opined were arbitrary); and addressed and considered other ways to do the jobs that would be less discriminatory while still accomplishing the purpose of reasonable site safety, the Arbitrator did not complete the required analysis.
Despite the employee-friendly reasoning of the majority of the Court of Appeal, Hoegg J.A. took what could be considered as a very practical approach that recognizes the realities of safety-sensitive workplaces and the challenges employers face when trying to balance safety and human rights in his dissenting opinion.
Hoegg J.A. found that it was reasonable for the Arbitrator to conclude that putting the Grievor on the worksite when he could be impaired constituted undue hardship and observed that the evidence indicated that the Grievor’s use of medical cannabis the evening prior to his shift the following day provided pain relief during the shift therefore, it is reasonable to assume that other effects from its use could also impact on the Grievor the following day. Hoegg J.A. also rejected the conclusions of the majority, namely that the Arbitrator made his decision in the absence of the Employer establishing undue hardship or that the Grievor was not individually assessed.
Hoegg J.A. commented that the practical effect of the majority’s reasoning in this case is to give the Grievor a chance to work on site and see if he can perform the job safely, which in his view, required the Employer to take safety risks to see if the Grievor can work without causing an accident, constituting undue hardship and could possibly result in “negligence allegations” (see page 30). In conclusion, Hoegg J.A. would have upheld the decision of the Application Judge and the Arbitrator, noting that the Grievor’s “chosen medical treatment cannot be permitted to trump the safety of other workers, the project’s success, or the grievor himself” (see page 31).
Ultimately, the appeal was allowed and the matter was remitted back to the Arbitrator to determine whether there are other means of individual assessment of the Grievor’s ability to perform the job safely which would provide an option for accommodation without undue hardship. This decision not only tackles a very challenging issue faced by employers but is an example of the growing trend toward employee-favourable decisions in relation to the use of impairing substances (legal or otherwise) in safety-sensitive workplaces. When dealing with accommodation issues related to medical cannabis or another protected ground, employers should conduct a fulsome review of any possible accommodations that may be available, considering the particular circumstances of the individual involved and assess the reasonableness and practicality of any potential options before making a decision that could adversely impact the employee.
If you have any questions regarding this case or any other workplace law developments, please do not hesitate to contact a Mathews Dinsdale lawyer.