Canadian Employment Law Today

Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends Accommodation of medical cannabis not guaranteed Newfoundland and Labrador court affi rms that inability to measure impairment from medical cannabis can constitute undue hardship BY RHONDA LEVY AND MONTY VERLINT THE SUPREME COURT of Newfound- land and Labrador rendered a welcome decision in February for employers across Canada that have been struggling to bal- ance their obligations under occupational health and safety and human rights legis- lation regarding medical cannabis use and work requirements in safety-sensitive po- sitions. Specifi cally, employers have been uncertain as to whether accommodating employees in these circumstances can be accomplished without undue hardship given the risk of impairment, which can- not be reliably measured using current technology for testing drug use. International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' As- sociation Inc. is a judicial review of an arbi- trator's dismissal of a grievance. e griev- ance was fi led by a union on behalf of an employee who was denied employment on a safety-sensitive construction project due to his use of medically prescribed cannabis to treat pain caused by two medical con- ditions. Both the union and the employer agreed that: • e emp loyee's pain constituted a "dis- ability" under Canadian law. • e employee was denied employment because he used cannabis to treat the pain, and this amounted to a prima fa- cie case of discrimination. • e employer had a duty to accommodate the employee's disability. However, the employer and the union did not see eye-to-eye beyond this point. e union's position was that the employer was obligated to hire the employee un- less it could demonstrate that his ability to work safely would be impaired by his use of medical cannabis. In the employer's view, its conduct was justifi ed on the basis of a good-faith occupational qualifi cation — specifi cally the requirement to work unimpaired on the construction project. To accommodate the employee, therefore, would constitute undue hardship because the risk of impairment on the job could not be reliably measured through available testing methods, the employer argued. e arbitrator agreed with the employer. " e employer did not place the (employ- ee) in employment at the project because of the (employee's) authorized use of medi- cal cannabis as directed by his physician. is use created a risk of the (employee's) impairment on the jobsite," said the arbi- trator. " e employer was unable to readily measure impairment from cannabis, based on currently available technology and re- sources. Consequently, the inability to measure and manage that risk of harm con- stitutes undue hardship for the Employer." No way of knowing level of impairment e issue before the court on judicial re- view was whether the arbitrator's decision was within the range of reasonable out- comes. In reviewing the arbitrator's analy- sis, the court noted that after considering the expert evidence presented to him, the arbitrator concluded: • e use of cannabis can impair the ability of a worker to function safely in a safety- sensitive workplace. • is impairment can last up to 24 hours after use. • e impairing eff ects may not be known to the user. • ere was no available means or methods for accurately testing impairment from cannabis used in the workplace. Upon reaching these conclusions, the arbitrator decided that in these circum- stances, and given the unavail- ability of non-safety-sensitive positions on the construction project, the employer could not accom- modate the employee without undue hard- ship. In dismissing the application with costs, the court stated: " ere was evidence which supported the arbitrator's conclusions and a clear line of analysis, which led from the evidence to the ultimate decision. e applicant's argument that the award was based on stigma or stereotype attaching to cannabis users is therefore without suffi cient foun- dation to support a fi nding that the arbi- trator's award was unreasonable. " e arbitrator based his fi ndings on resolution of the evidence before him, and his decision was within the range of rea- sonable outcomes." Bottom line for employers Employers throughout Canada may wish to rely on this case in support of their un- due hardship defense, at least until reliable testing methods become available. e ar- gument is that in the absence of technology capable of accurately testing impairment from cannabis, accommodating employ- ees who use medically prescribed cannabis and work in safety-sensitive positions can- not be accomplished without undue hard- ship. While this case may be subject to an appeal, the decision is a welcome legal de- velopment for employers with employees in safety-sensitive positions. For more information see: • International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (N.L. S.C.). ABOUT THE AUTHORS Rhonda B. Levy and Monty Verlint Rhonda B. Levy is knowledge management counsel for Littler LLP in Canada, monitoring legislative, regulatory and caselaw developments. She can be reached at (647) 256-4545 or rlevy@littler.com. Monty Verlint is a partner with Littler LLP in Toronto, practicing in all areas of labour and employment law. He can be reached at (647) 256-4506 or mverlint@littler.com.

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