Current medical science and drug testing technology is not sophisticated enough to determine impairment in many workplace scenarios.
As we have previously reported, employers overseeing safety-sensitive workplaces in this environment of uncertainty benefitted from authorities clarifying the limits of accommodation for employees who use medical cannabis (see our past blog post: Court Affirms Important Limitations for Accommodating Use of Medical Cannabis in a Safety-Sensitive Workplace). A successful appeal of the decision reviewed in that blog post has cast doubt on the strength of those authorities.
The Court of Appeal of Newfoundland and Labrador has very recently overturned a decision of the lower court which upheld an arbitration award on judicial review. In so doing, three separate reasons were issued by the Court of Appeal which addressed undue hardship limits of accommodation that ought to be considered by employers in respect of impairment from medication in safety-sensitive workplaces.
In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2020 NLCA 20, the union appealed to the Court of Appeal in respect of the decision of the lower court (2019 NLSC 48). In separate reasons, a majority of the Court held that the lower court judge erred in holding that the adjudicator's decision was reasonable and returned the matter to the adjudicator for further consideration.
The underlying arbitration award was related to a grievance filed on behalf of a union member who was denied employment in a safety-sensitive position on a construction project due to his authorized medical cannabis use. When the union member attended for his pre-employment screening, he disclosed his cannabis authorization, his daily cannabis use for pain management and he indicated that he would probably "fail" the drug screening. Eventually, the company refused to hire the union member and the grievance was filed. In the arbitral award, the arbitrator determined that it would be an undue hardship for the company to accommodate the union member because of the safety risk.
The arbitrator held that, once the issue of possible impairment from cannabis use arose, the employer was entitled to obtain medical information which satisfactorily demonstrated that the union member could safely perform his duties. Accordingly, without this clearance, there was no obligation on the part of the employer to hire the applicant and "test the risk". The arbitrator heard from experts and found that cannabis use can impair function in a safety-sensitive workplace for up to 24 hours and that there was no currently-available means for accurately testing impairment. The arbitrator concluded as follows:
The safety hazard that would be introduced into the workplace here by residual impairment arising from the Grievor's daily evening use of cannabis products could not be ameliorated by remedial or monitoring processes. Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the Employer if it put the Grievor to work. As previously stated, if the Employer cannot measure impairment, it cannot manage risk.
According to reasons from Welsh J.A. of the Court of Appeal of Newfoundland and Labrador, the adjudicator was required to and did not properly assess whether or not the employer adequately considered alternative individualized measures of accommodating the union member, including with regards to individualized impairment assessment. An individualized assessment of accommodation is required by the test for undue hardship established by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [Meiorin]. Welsh J.A. ordered that the matter be remitted back to the arbitrator on this point. Concurring reasons from Butler J.A. explained that the arbitrator and the lower court judge also erred by placing too much emphasis on the "possible risk" of impairment, which the Meiorin test places limited weight upon.
In dissent, Hoegg J.A. would have upheld that the decisions of the lower court judge and the arbitrator as reasonable. The dissenting reasons argue that the upshot of the concurring majority's reasons would have required the union member to work on the work site and then for the employer to assess the safety risks. This outcome is counterintuitive and could give rise to injuries and negligence.
In our view, the reasons of Welsh J.A. and Butler J.A. are not easy to reconcile with the adjudicator's findings of fact which are tailored to the union member involved and specifically considered individualized approaches to accommodation: the adjudicator found that impairment could last until the next day from cannabis use and that the union member's "daily evening cannabis use of cannabis products could not be ameliorated by remedial or monitoring processes", as above. This was based on evidence which included individual cannabis dosage, method of ingestion and expert evidence. The only positions available were safety-sensitive on a safety-sensitive worksite. These findings indicate that the adjudicator was satisfied that the employer considered undue hardship in the individual context of the union member and that there were no alternative options available. The majority of the Court of Appeal has stated that more inquiry into individualized accommodation than this was required.
The issues that remain from this decision are (especially in circumstances of enforcing workplace safety and drug and alcohol policies) what level and what standard of individualized assessment of accommodation must be met in order to meet the high threshold for undue hardship? Although this case may still wind through the courts, it clearly indicates that employers must be diligent when assessing whether or not undue hardship has been met.
Implications for Employers
Employers are obligated to provide safe work environments. When the duty to provide safe work and the duty to accommodate disabled employees come into conflict, employers must know their rights and the limits to those rights. As this case demonstrates, the limits of undue hardship with respect to medical cannabis are in some ways in flux. It is not a given that the duty to accommodate extends to a requirement that the employer accept a risk which compromises safety resulting from possible impairment from medical cannabis.
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