Accommodating employees who use medical cannabis can present significant practical issues for employers—especially those with safety-sensitive workplaces. This is particularly so because with current medical science and drug-testing technology, it is difficult to determine if a worker is able to perform his or her duties free from current or residual cannabis impairment.
In a recent decision, the Supreme Court of Newfoundland and Labrador addressed the limits of how far an employer must go to accommodate the use of medically authorized cannabis by an employee in a safety-sensitive workplace.
In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48, the union applied to the Court for judicial review of an arbitration award related to a grievance. The grievance was filed on behalf of a union member who was denied employment in a safety-sensitive position on a construction project due to his use of medically authorized cannabis.
In this case, the union member was referred by his union and accepted by the company—subject to a satisfactory drug and alcohol test—for employment in a position that was considered safety-sensitive. When the employee attended his screening, he disclosed his cannabis authorization and use, and was told that he would probably “fail” the drug screening. It was not disputed throughout the hearing that the union member would have failed the screening. After several months of communications between the parties, the company refused to hire the grievor and the grievance was filed.
In the arbitral award, the arbitrator determined that the union member had a disability, and the company had to accommodate him to the point of undue hardship. But, the arbitrator said it would have been an undue hardship for the company to accommodate the union member in a safety-sensitive position because of the safety risk.
The arbitrator held that once the issue of possible impairment from cannabis use arose, the employer was entitled to medical information which satisfactorily demonstrated that the grievor could safely perform his duties.
In this case, the doctor had restricted the union member from driving for four hours after use. However, the arbitrator was not satisfied that the general physician properly assessed the safety risk of continuing impairment based on a clinic visit and a basic understanding of his patient’s work. Instead, the arbitrator concluded from the evidence that “the use of marijuana can impair the ability of a worker to function safely in a safety-sensitive workplace, that this impairment can last up to 24 hours after use, that the impairing effects may not be known to the user, and that there was no available means or method for accurately testing impairment from cannabis in the workplace.” (See para. 42, 2019 NLSC 48.) 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.
In dismissing the judicial review application, Justice Boone addressed the underlying issue of what onus an employer bears to prove actual impairment in such cases. The union argued that the arbitrator erred by not placing the onus of proving impairment on the employer. Justice Boone affirmed that, once the issue of possible impairment had been raised, it was reasonable that the employer was entitled to medical information demonstrating that the grievor could perform the job safely. Accordingly, there was no obligation on the part of the employer to hire the applicant and “test” the risk.
Implications for Employers
Employers have strict legal obligations to provide a safe work environment. When employers’ duties to provide a safe work environment and to accommodate disabled employees come into conflict, it is crucial that employers know their rights and the limits to those rights. For example, an authorization for medical cannabis does not mean that an employee is entitled to use cannabis at work.
Employers must go through an accommodation process to determine whether the use of cannabis is related to a prohibited ground of discrimination under applicable human rights legislation. If it is, it must be determined whether it can be accommodated in the workplace without undue hardship. As this case demonstrates, the duty to accommodate may not extend to a requirement that the employer accept a risk that compromises safety resulting from possible impairment from cannabis.