Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases chronic pain, insomnia and anorexia. He pro- vided documentation showing his licence for the Medical Marijuana Access Program and said he planned to abstain from using medical marijuana during his three-week rotations at the oilsands site. Unsurprisingly, the drug test came back "non-negative" for THC, an intoxicant in marijuana. As per AOMS' procedures and regu - lations based on U.S. law that AOMS had ad- opted for its own drug and alcohol screening, the results were referred to a company medical review officer for verification in light of his pre- scription. The medical review officer's role was to confirm independently if there was a valid reason for the non-negative result and, if so, verify the test as having a final result of negative on the drug screen. On Aug. 22, 2014, Maharajh sent the medi - cal review officer additional documentation about his medical marijuana use, including a letter from the prescribing physician and a copy of his Health Canada authorization to use the drug for medical purposes. Worker flagged as safety risk On Aug. 25, the medical review officer dis - closed the test results and the information about Maharajh's medical marijuana use to AOMS. AOMS then disclosed to Husky, the company operating the oilsands site, that Ma- harajh had been flagged as a potential safety risk notwithstanding his verified negative drug test results. AOMS believed that it was obli- gated to disclose information on safety risks for safety-sensitive positions in its contract with Husky — which required it to ensure that any employees it provided to the Husky work- site satisfied the requirements for workers in safety-sensitive positions —and Husky's drug and alcohol policy, which applied to subcon- tractors. Based on the information from AOMS, Husky decided to deny Maharajh access to its site. AOMS informed Maharajh that Husky had rejected his application and it couldn't of - fer him the senior occupational health nurse position, but it would consider him for future employment. Three weeks later, on Sept. 17, AOMS met with Maharajh and advised him that it didn't have a position for him. It con - firmed Husky had decided to refuse him access to its site. Maharajh filed a human rights complaint al- leging discrimination on the basis of disability in the context of employment. The board found that Maharajh's chronic pain, which was secondary to a cancer diag - nosis and subsequent treatment, constituted a disability within the meaning of the New- foundland and Labrador Human Rights Act, 2010. In addition, the board found that "there is more than a link between his disability and the manner in which his application for em - ployment was handled." "It is because Mr. Maharajh uses medical marijuana to treat his chronic pain that his drug test results were flagged as a potential safety issue," said the board. "I'm satisfied that but for Mr. Maharajh's disability none of this would have happened and Mr. Maharajh would not have been denied employment." With discrimination established, the ques - tion turned to whether AOMS could reason- ably accommodate Maharajh's disability and, if so, whether it made a reasonable effort to do so. The board found that AOMS' decision to inform Husky about a potential safety risk because of Maharajh's medical marijuana use was rationally connected to ensuring a safe work environment at the oilsands worksite. The company's disclosure was also made in a good faith, as its practice was to disclose all potential safety risks as a way to ensure worker safety in a safety-sensitive industry, which was an industry standard. AOMS was also con - cerned about its potential liability and reputa- tion in the industry if it didn't flag a potential safety issue to Husky and Maharajh later failed a drug test onsite. No accommodation analysis However, despite the reasonableness of AOMS' safety concerns, the board found that the com- pany didn't live up to its duty to seek reason- able accommodation. There was no analysis of the position for which Maharajh applied and if it was particularly safety sensitive — there was a distinction between a "safety-sensitive indus - try" and a "safety-sensitive position within an operation," said the board. The job description for a senior occupa- tional health nurse at the worksite consisted mostly of administrative or managerial re- sponsibilities with some direct patient care within "the relative safety of a medical clin- ic," the board noted, which were "removed from the inherently dangerous operations one would ordinarily associate with a remote industrial worksite." This didn't support the argument that the senior occupational health nurse position was safety sensitive and in - volved "duties and responsibilities that are of such significant and risky nature that even a momentary lapse of attention (whether by impaired performance, judgment or percep- tion) would reasonably be expected to have a direct negative impact on the health and safety of employees, contractors, customers, the public, or the environment," as defined in the Husky drug and alcohol police, said the board. The board added that the Husky police only required AOMS to disclose the verified nega - tive test result to Husky and AOMS would then have to perform a fitness-to-work assessment as to whether Maharajh could perform the du- ties of the position. However, AOMS didn't consider such an assessment and wasn't able to show that accommodating Maharajh would be undue hardship. AOMS was ordered to pay compensation for loss of income that Maharajh would have earned had he been given access to the oil - sands site plus $7,500 in general damages for mental distress and loss of dignity Maharajh suffered from the discrimination. In addi- tion, AOMS was required to review its work- place policies, implement a training program with the help of the provincial Human Rights Commission and provide a written apology to Maharajh. For more information, see: • Matthew Maharajh v. Atlantic Offshore Medi- cal Services Limited, 2020 CarswellNfld 366 (N.L. Bd. of Inq.). « from WORKER WITH on page 1 Worker denied access to worksite based on non-negative test result There was a link between the worker's disability and the way his employment application was handled, said the board. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as getting terminated employees to sign releases, employment law developments in 2021, and workplace harassment. You can view the blog at www.employmentlawtoday.com.

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