The courts have again reminded employers-and arbitrators-of the importance of a proper investigation and analysis when an employee is discovered to be using medical marijuana contrary to the employer's policies.

The law of medical marijuana continues to develop as employers are increasingly faced with employees choosing to use medical marijuana for various health conditions. Failure to properly consider possible accommodations for an employee who uses medical marijuana for a disability could create a prima facie form of discrimination, unless the employer can show that they accommodated the employee up to the point of undue hardship. Undue hardship is specific to the context of the employee and their duties. As seen in Calgary (City) v. CUPE, Local 37, [2015] AWLD 4209 [Calgary], arbitrators will reinstate employees-even into safety sensitive positions-unless the employer discharges its obligation to accommodate to the point of undue hardship. In Calgary, the employer was found to have done a faulty investigation directed by senior management at the City with a predetermined outcome. The employee was reinstated into a safety sensitive position with various conditions.

Recently, the Newfoundland and Labrador Supreme Court (Trial Division), has taken the opportunity to remind not just employers, but arbitrators, that there must be a full analysis of the context and circumstances in which an employee uses medical marijuana. In IBEW, Local 1620 v. The Lower Churchill Lower Transmission Employee Association Inc., 2016 NLTD(G) 192 [IBEW] the court judicially reviewed an arbitrator's decision upholding termination of an employee for their use of medically prescribed marijuana outside the workplace, non-disclosure of the same, and possession of legal medical marijuana in the workplace. The court held that the non-disclosure and possession in the workplace was a breach of the employer's obligation under valid employer policies and therefore a reasonable finding of misconduct. However, the court also found that the arbitrator's decision to uphold the termination for this misconduct was unreasonable. The arbitrator's finding of misconduct required a further analysis of whether a lesser penalty short of termination was appropriate in the circumstances. By failing to engage in this analysis and summarily stating the misconduct warranted termination, the arbitrator's decision was unreasonable with respect to dismissal.

IBEW reminds employers and their counsel that they must ensure a standard and thorough investigation and analysis of employees' use of medical marijuana. The analysis does not end with human rights and discrimination if disciplinable misconduct occurs, an employer must again review the circumstances to determine if termination is warranted in the circumstances. Just as in the human rights context, it is important that the employer not respond in a manner that is disproportionate in light of the circumstances regarding the use of medical marijuana. Non-speculative information about the condition and effects of the medical marijuana should be sought and reviewed just as an employer would do with any other potentially impairing medication.

Issues of medical marijuana, discrimination and employee misconduct are continually being faced by employers at an increasing rate. Given the sensitivity around these situations, in the media, from arbitrators, and by the courts, it is important that a proportionate, thorough and full response is done by employer's facing an employee using marijuana for allegedly medical purposes. There may be significant costs incurred in mishandling such a case, and therefore, it is strongly urged that employers seek appropriate advice when faced with these circumstances.