Newfoundland and Labrador court affirms that inability to measure impairment from medical cannabis can constitute undue hardship

THE SUPREME COURT of Newfoundland and Labrador rendered a welcome decision in February for employers across Canada that have been struggling to balance their obligations un-der occupational health and safety and human rights legislation regarding medical cannabis use and work requirements in safety-sensitive positions. Specifically, employers have been uncertain as to whether accommodating employees in these circumstances can be accomplished without undue hardship given the risk of impairment, which cannot be reliably measured using current technology for testing drug use.

International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc. is a judicial review of an arbitrator’s dismissal of a grievance. The grievance was filed by a union on behalf of an employee who was denied employment on a safety-sensitive construction project due to his use of medically prescribed cannabis to treat pain caused by two medical conditions. Both the union and the employer agreed that:

• The employee’s pain constituted a “disability” under Canadian law.
• The employee was denied employment because he used cannabis to treat the pain, and this amounted to a prima facie case of discrimination.
• The employer had a duty to accommodate the employee’s disability.

However, the employer and the union did not see eye-to-eye beyond this point. The union’s position was that the employer was obligated to hire the employee unless it could demonstrate that his ability to work safely would be impaired by his use of medical cannabis. In the employer’s view, its conduct was justified on the basis of a good-faith occupational qualification — specifically the requirement to work unimpaired on the construction project. To accommodate the employee, therefore, would constitute undue hardship be-cause the risk of impairment on the job could not be reliably measured through available testing methods, the employer argued. 

The arbitrator agreed with the employer.

“The employer did not place the (employee) in employment at the project because of the (employee’s) authorized use of medical cannabis as directed by his physician. This use created a risk of the (employee’s) impairment on the jobsite,” said the arbitrator. “The employer was unable to readily measure impairment from cannabis, based on currently available technology and re-sources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.”

No way of knowing level of impairment

The issue before the court on judicial review was whether the arbitrator’s decision was within the range of reasonable outcomes. In reviewing the arbitrator’s analysis, the court noted that after considering the expert evidence presented to him, the arbitrator concluded:

• The use of cannabis can impair the ability of a worker to function safely in a safety-sensitive workplace.
• This impairment can last up to 24 hours after use.
• The impairing effects may not be known to the user.
• There was no available means or methods for accurately testing impairment from cannabis used in the workplace.

Upon reaching these conclusions, the arbitrator decided that in these circumstances, and given the unavailability of non-safety-sensitive positions on the construction project, the employer could not accommodate the employee without undue hardship. 

In dismissing the application with costs, the court stated:

"There was evidence which supported the arbitrator’s conclusions and a clear line of analysis, which led from the evidence to the ultimate decision. The applicant’s argument that the award was based on stigma or stereotype attaching to cannabis users is therefore without sufficient foundation to support a finding that the arbitrator’s award was unreasonable.

"The arbitrator based his findings on resolution of the evidence before him, and his decision was within the range of reasonable outcomes."

Bottom line for employers

Employers throughout Canada may wish to rely on this case in support of their undue hardship defense, at least until reliable testing methods become available. The argument is that in the absence of technology capable of accurately testing impairment from cannabis, accommodating employees who use medically prescribed cannabis and work in safety-sensitive positions cannot be accomplished without undue hard-ship. While this case may be subject to an appeal, the decision is a welcome legal development for employers with employees in safety-sensitive positions. 

For more information see:

International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48 (N.L. S.C.).

Rhonda B. Levy and Monty Verlint

Rhonda B. Levy is knowledge management counsel for Littler LLP in Canada, monitoring legislative, regulatory and caselaw developments. She can be reached at (647) 256-4545 or rlevy@littler.com. Monty Verlint is a partner with Littler LLP in Toronto, practicing in all areas of labour and employment law. He can be reached at (647) 256-4506 or mverlint@littler.com.

From the May 29, 2019, issue of Canadian Employment Law Today, published by HAB Press. Read full article here: https://www.employmentlawtoday.com/article/40204-accommodation-of-medical-cannabis-not-guaranteed/