Canadian HR Reporter

www.hrreporter.com 11 for impairment — as an employer, it can safely accommodate this person, even if it isn't a safety-sensitive role, says Boshyk. "That's going to be a really onerous thing for employers to do in a lot of cases." Basically, the Court of Appeal said, "This was just not enough; you could have done more, you could have done functional assessments at the time of every shift. And you could have [gone] above and beyond to try to accommodate," says Monty Verlint, a partner at Littler in Toronto. "And that's really a tough thing for employers to do. It's tough from a practical perspective and it's not an easy process," he says. "How do you really know whether you've done enough to accommodate? "When I look at any duty to accommo- date… one of the things I always say to my client is, 'Look, you need to go through the steps, you need to go through the process, you need to make the inquiry, you need to speak to people, you need to think about options… "And when the court does not see that that development has taken place, they step in. And this is one of those classic examples where the court has said, 'It's not enough.'" "That's the disturbing part, in my view of the case, but it means that employers are really going to have to look very, very closely at each individual case more than ever. The legal test really hasn't changed, in my opinion, but the level of scrutiny of the application of the test has." Onerous for employers The most surprising thing was that there seemed to be an acknowledgement, at the arbitrator level and both levels of court, that there isn't a reliable way to test for impairment from a scientific perspective, says Paul Boshyk, a partner at McMillan in Toronto. "At least two of the three judges... really seem to say, 'We're going to put the onus on the employer, potentially, to do what science can't do,'" he says. "The court really seemed to put the onus on the employer to go above and beyond what's the Health Canada Guidance prescribed around whether the impairing effects of cannabis use can last up to 24 hours." Basically, employers are going to have to take that extra step of undertaking an individual assessment to see whether or not — notwithstanding the scientific or medical evidence and notwithstanding that there's no reliable way to test Safety considerations However, the dissenting judge had stern words in the decision around the issue of workplace safety. "The practical effect of my colleagues' reasoning is that the employer should give the grievor the chance to work on the site to see if he can perform the job safely. This is a hit-or-miss proposition… To cause the employer to take safety risks to see if the grievor can work without causing an accident is, to my mind, causing the employer to endure undue hardship," said Justice Lois Hoegg. "The bottom line is that if an employee's health condition is being treated with a drug which causes mental or physical impairment which cannot be evaluated, whether it be cannabis or another drug, that employee may simply not be able to work in a safety-sensitive position… His chosen medical treatment cannot be permitted to trump the safety of other workers, the project's success or the grievor himself." It's a valid argument, says Verlint. "It's possible that there could be some health and safety issues as a result of the employer trying to fulfil these duties." What is critical is that this means putting employers and, more importantly, other employees at life-and-death risk, says Keith, "by playing the game the court has played that 'Well, no you have to employ them, you have to try harder, you have to put others at risk. "The threshold is so high for the employer to prove that they've taken accommodation steps to the point of undue hardship that… you've transferred [the risk] from the worker who might lose their job or might not get the same high-paying job to everybody else in the workplace because it's other unionized workers that are going to get injured and killed." CHRR "The legal test really hasn't changed, in my opinion, but the level of scrutiny of the application of the test has." Norm Keith, Fasken

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