Recreational cannabis is very much in the spotlight as the date for legalization approaches. Yet issues related to employee use of medical cannabis are still front and centre for many employers, as demonstrated by a pair of recent arbitration decisions: Re IBEW, Local 1620 and Lower Churchill Transmission Construction Employers Assn. Inc. (Uprichard) (2017), 281 LAC (4th) 246 (“Lower Churchill 1”) and Re Lower Churchill Transmission Construction Employers Assn. Inc. and IBEW, Local 1620 (Tizzard) 2018 Carswell Nfld 198 (“Lower Churchill 2”).

Both decisions apply long-standing principles of accommodation to emerging issues of cannabis in the workplace. Lower Churchill 1 confirms that it is an underlying disability, not the prescription for cannabis, that will trigger the employer’s duty to accommodate. Lower Churchill 2 is an encouraging result for employers with safety sensitive workplaces in that the arbitrator held that the employer’s inability to effectively measure and monitor residual impairment from medical cannabis used outside of work hours constituted undue hardship. Both decisions are outlined below.

Key Takeaways

The following general conclusions may be drawn from the Lower Churchill decisions when read together:

• while employers continue to owe a duty of accommodation to employees with recognized disabilities, this duty is not engaged simply because an employee holds a prescription for cannabis; and
• the potential for several hours of residual impairment, and the current limitations on testing for present impairment resulting from cannabis, present a legitimate safety risk which may amount to undue hardship for employers in a safety sensitive environment.

While the Lower Churchill decisions result from labour arbitrations involving a Newfoundland employer, the above guidance is informative in all Canadian jurisdictions.

Lower Churchill 1: The duty to accommodate engaged by a recognized disability

The grievor in Lower Churchill 1 was a short service employee. He was responsible for driving a pickup truck and operating lifting equipment as an assembler on a transmission line. Due to the nature of the project, he was required to be on site for several weeks at a time. The grievor used medical cannabis, prescribed by his doctor, to manage chronic back pain and anxiety. He disclosed this use after the employer’s safety advisor detected the smell of cannabis in his truck. The grievor was dismissed in accordance with the employer’s zero tolerance policy which required disclosure of any drugs or medication which might have an impact on work. He had no record of unsafe work practices or safety related incidents.

The union brought a grievance for unjust termination. The arbitrator held that there was just cause for termination. The union sought judicial review of the arbitrator’s decision. The court sent the issue of termination of employment back to the arbitrator for further argument and consideration of whether an alternate, less severe penalty to dismissal would be more appropriate, and whether there could be some measure of accommodation.

The arbitrator reconsidered the grievance and ruled that the grievor be reinstated conditionally. However, he refused to order any terms of accommodation, stating that it would be inappropriate to make such an order on the basis of the information before him. The arbitrator underlined that there were no findings in his first award or the court’s decision that the grievor had a disability requiring accommodation. The legal obligation of accommodation would only be engaged where a disability has been established. A prescription for cannabis alone does not oblige the employer to accommodate.

The arbitrator also expressed his reluctance to impose an accommodation in that the accommodation process is a multi-party inquiry requiring participation by the employer, union and the employee, as was established by Renaud. Notably, neither the union nor the grievor had requested accommodation in Lower Churchill 1.

Lower Churchill 2: Inability to monitor residual impairment may constitute undue hardship

Lower Churchill 2 involved the same employer as Lower Churchill 1 but was heard by a different arbitrator. The grievor was offered a labourer position pending mandatory pre-employment drug and alcohol screening. After his test results came back positive, the employer learned that the grievor used medical cannabis every evening to manage pain from osteoarthritis and Crohn’s disease. After considering information provided by the grievor’s doctor and advice from a medical consultant retained by the employer, the employer eventually informed the grievor that he was no longer being considered for employment.

The union grieved the employer’s decision on the basis that the employer failed to accommodate the grievor’s disability. The employer argued that the position was safety sensitive and the safety risks added to the workplace by the grievor’s nightly cannabis use brought the employer to the point of undue hardship.

The arbitrator accepted that the labourer position was safety sensitive and that the grievor had a disability. He also found that requiring a labourer to perform work in a safe manner was a bona fide occupational requirement and he went on to consider the long-standing Meiorin test. To determine whether undue hardship was established under the third branch of the Meiorin test, the arbitrator considered a broad range of medical expertise on the effects of cannabis use. Two key questions were central to his inquiry:

1. What is a safe interval of time between cannabis use and performance of safety sensitive duties?
2. What ability do employers have to test for impairment caused by cannabis?

The arbitrator determined that there is no scientific consensus on question 1. He noted that Health Canada’s guidance states that cannabis-induced impairment may persist for 24 hours; a much longer period than suggested by other opinions that recommend patients avoid driving or other activities requiring alertness for 4 hours. On question 2, the arbitrator accepted that current testing methods cannot determine whether the subject is impaired at the time of testing, and therefore would not be useful to employers as a monitoring mechanism.

The arbitrator found that the grievor’s nightly dosage (1.5 grams of cannabis having THC levels of up to 22%) would have led a reasonable employer to conclude that there was an increased risk of harm from residual impairment. The arbitrator also found that the potential safety hazard could not be ameliorated by remedial or monitoring processes and therefore the employer would not be able to manage the risk of impairment on the jobsite. For these reasons, the arbitrator ruled that accommodating the grievor’s medical cannabis use in this case would constitute an undue hardship on the employer and denied the grievance.

 

• Many thanks to Jan Nato for his assistance with this article.