May 18, 2018

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

In the recent arbitration decision involving Lower Churchill Transmission Construction Employers’ Association Inc. and IBEW, Local 1620, issued on April 20, 2018, Arbitrator John Roil, Q.C., agreed that the Employer had reached the point of undue hardship when it refused to hire an employee with a prescription for medical marijuana into a safety-sensitive position.
The Grievor, a member of IBEW, Local 1620 (the “Union”) applied for the position of Utility Person with Valard Construction LP (the “Employer”), who was 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 referred by his family physician to a physician at a medical marijuana clinic and was prescribed 45 grams of medical marijuana per month, of which he used 1.5 grams per day, with a THC content of 20% and eventually 22%, by way of a vaporizer in the evenings. This dosage provided the Grievor with relief from his symptoms and the Grievor reported no impairment.
Initially when the Grievor began using medical marijuana, he was employed by another subcontractor working on the Lower Churchill project. He advised his 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. He was offered the position subject to a satisfactory drug and alcohol test. The Grievor advised the Employer of his medical marijuana 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 provided by their consultant. A response to the questionnaire was provided to the Employer but was delayed. In the meantime, the Grievor also obtained a note from his family physician which was provided to the Employer. The Employer sought review by their safety team before providing a response. Some months had passed since the Grievor applied for the position of Utility Person and the Union sought confirmation from the Employer that the Grievor be permitted to apply for another newly posted labourer position of Assembler. The Employer confirmed that the Grievor would not be considered for this position as the Employer was awaiting satisfactory medical information. Shortly thereafter, the Employer requested that the Grievor undergo a Substance Abuse Evaluation. The Grievor sought to have this evaluation completed, but was refused due to his prescription for medical marijuana.
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 took the position 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 Union also argued that the Employer breached the Grievor’s privacy rights as it had mishandled the Grievor’s private medical information. The Union sought loss of earnings in the amount of $140,770 and $45,000 in general damages for violation of human rights.
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, which was limited by the amount of information provided and the lack of cooperation from the prescribing physician. Furthermore, the Employer argued that the safety risks added to the workplace by the Grievor’s medical marijuana use brought the Employer to the point of undue hardship as the risk of impairment from marijuana use were real and there was an inability to measure current impairment.
At the hearing, extensive evidence from a number of witnesses as well as expert witnesses was adduced.
Arbitrator Roil reviewed the chronology of events and found that both positions with the Employer that the Grievor had applied for were safety-sensitive, and that the Grievor had a disability requiring accommodation. He went on to consider the Employer’s duty to accommodate, considering specifically the requirement for individual assessment as well as undue hardship. Arbitrator Roil noted that an assessment based on the individual needs of the employee is required in order to determine possible accommodation and that undue hardship does not mean that the employer must eliminate all risk in the workplace.
Arbitrator Roil concluded that the Employer must have reasonable medical information sufficient to determine, how, if at all, the employee could be accommodated. In this case, the BFOR was that the Grievor must be able to perform the work of the positions applied for in a safe manner. He noted that the Employer and the Union play a role in the accommodation process and that neither party had considered or suggested an accommodation of a non-safety-sensitive position.  He also concluded that based on the evidence, accommodation could not be achieved by changing the Grievor’s prescription and turned to the evidence of impairment to conclude whether the Grievor could perform the duties safely.
Arbitrator Roil made the following conclusions regarding impairment:

1. Use of medical marijuana can cause impairment which can last for up to 24 hours after use
2. Residual impairment can impact functions the day after evening medical marijuana use
3. A general physician is not in a position to adequately comment on the impact of medical marijuana on workplace safety
4. There are no readily available testing resources to allow the Employer to accurately measure impairment arising from regular use.

Arbitrator Roil then went on to consider undue hardship, specifically whether the Employer was required to compromise safety and assume the risk of the Greivor’s medical marijuana consumption. Pursuant to the Regulations under the Occupational Health and Safety Act, workers are prohibited from being on a job site while the ability to perform work responsibilities is impaired. Arbitrator Roil concluded that because there is an inability to measure current impairment, the risk associated with any residual impairment from the Grievor’s medical marijuana use cannot be adequately monitored or ameliorated.  Therefore, undue hardship would result if the Grievor was permitted to work in the positions in question. Arbitrator Roil commented “if the Employer cannot measure impairment, it cannot manage risk” (at page 60).
Arbitator Roil noted that his conclusion differed from other arbitrable authorities that permitted employees prescribed medical marijuana to work in safety-sensitive positions subject to random drug testing. However, he found that random testing was not sufficient given the lack of effective or practical means for measuring current impairment. Arbitrator Roil concluded that the Employer accommodated the Grievor to the point of undue hardship noting that the Grievor’s chosen treatment “requires more research and knowledge than is currently possible in order to ensure an employer’s ability to determine impairment in a construction environment” (at page 64).
Ultimately, Arbitrator Roil found no basis for breach of privacy, denying the grievance on all issues and declining to award any damages.
Although the outcome of this case turned on the unique facts in this particular situation however, it still provides support for employers with safety-sensitive workplaces and employees with prescriptions for medical marijuana and highlights one of the major concerns surrounding the upcoming legalization of marijuana across the country.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.