A recent arbitration decision concerning an employer’s duty to accommodate a medical cannabis user rendered in Newfoundland has recently been judicially reviewed and upheld. The arbitration decision, Lower Churchill Transmission Construction Employers’ Assn. Inc. and Valard Construction LP v. International Brotherhood of Electrical Workers, Local 1620 (Tizzard), 2018 CarswellNfld 198, 136 C.L.A.S. 26, dealt with a grievor who had applied for two positions with the employer and was denied. The positions required that the grievor undertake a drug test as the positions were safety-sensitive positions.
At the time of taking the drug tests the grievor was being prescribed medical marijuana on account of his osteoarthritis and Crohn’s Disease. He would take the medical marijuana in the evening after work; he would use a vaporizer to consume approximately 1.5 grams per day. The dose of THC content was approximately 22%, but it did not specify the dose or frequency of use. When taking the test, the grievor informed the employer that he used medical marijuana. The employer decided not to hire the grievor on the basis of safety concerns and particularly, that the grievor’s cannabis use would impair his ability to perform those jobs safely.
The employer argued that the grievor could not be accommodated due to the risk of possible impairment in a safety-sensitive position. In his decision, the Arbitrator determined that once a risk of possible impairment had been established, the employer was entitled to demand medical information which demonstrated to the employer’s reasonable satisfaction that the grievor could perform the job safely. In this case, the medical evidence confirmed that residual impairment would continue for at least 24 hours after the use of the medical marijuana and as result, there would be a safety hazard if the employee were provided either of the positions. The Arbitrator determined that undue hardship existed because of the safety risk and because it was not possible to determine the level of impairment of the grievor.
On judicial review, the Court accepted the Arbitrator’s decision entitling an employer to require further medical information to its reasonable satisfaction to ensure that the Grievor could perform the job safely, placing the onus on the grievor to establish to the satisfaction of the employer that he could safely perform the job. The decision is a positive one for employers who have many safety-sensitive positions. However, it is important to note that while an employer may decide not to employ an individual who is required to take impairing medication in a safety-sensitive position; it does not alleviate employers from their initial requirement to determine whether or not they are able to accommodate the employee. If you have any questions regarding your duties to accommodate employees with disabilities, please do not hesitate to contact us.