Canadian HR Reporter

N E W S 10 www.hrreporter.com Appeal court delivers 'frightening' decision around undue hardship For employers, when is enough enough? Newfoundland and Labrador's Court of Appeal recently decided a company didn't go far enough in trying to accommodate a worker taking medical marijuana, writes Sarah Dobson "IT'S a phenomenal decision; it's frightening for employers." So says Norm Keith, a partner at Fasken in Toronto, in responding to a recent decision by the Court of Appeal of Newfoundland and Labrador where two of the three judges concluded that an employer could have done more to accommodate a worker taking medical marijuana. "It's probably not going to be uni- Appeal delivered what many consider a surprising decision, in determining that the applications judge erred in concluding that the arbitrator's decision was reasonable. The absence of a scientific or medical test or standard "does not lead inexorably to the conclusion that there is no means by which to determine whether an employee, by reason of ingesting cannabis, would be incapable of performing a specific job, including a safety-sensitive job," said Justice Gale Welsh. "The onus was on the employer to establish on a balance of probabilities that some means of individual testing of the [worker] to assess his ability to perform the job was not an alternative." It was not sufficient for the employer to take the position that it could not employ someone because they posed a risk, said Justice Gillian Butler in the decision. "The employer must go further and establish through an individualized analysis (not limited to medical or scientific testing) why allowing this grievor to perform this job on this site would not enable the employer to maintain reasonable site safety, short of undue hardship," she said. "The focus of the arbitrator's decision became how to reliably measure possible versally applied, but it is an important [decision] to keep in mind when you've got somebody who's not just on medical cannabis but really any type of medication that's sanctioned by a medical practitioner," he says. Background on case The case involved a worker at the Muskrat Falls Project, employed by the contractor Valard Construction. The man suffered from osteoarthritis and colitis and managed his pain by taking medically prescribed cannabis each evening. But when he failed a drug and alcohol test and the employer concluded it could not accommodate the disability beyond the point of undue hardship, the union filed a grievance claiming discrimination. The arbitrator ultimately agreed with the employer. And an application for judicial review of the arbitrator's decision, brought by the union, was also dismissed: "The employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the employer." However, on June 4, the Court of impairment from the prescription drug use instead of the grievor's ability to perform the duties or modified duties while taking the prescribed drug." 'Between a rock and a hard place' In essence, the Court of Appeal is saying that even if an employer has expert evidence that it can't accommodate someone, that doesn't go far enough, says Keith. "Even if the experts say, 'You can't test and evaluate with the current resources available at this remote worksite,' that's something you're going to have to figure out," he says. "In other words, you're kind of screwed; you're really between a rock and a hard place. "The majority gave no clear direction on what [the employer] did wrong or what they would need to do to correct the standard of accommodation to the point of undue hardship. So, in some respects, it's shocking; in other respects, it's kind of like, well, what are they saying?" says Keith. It's a surprising result because, as the dissenting judge says, the company did individually assess the capability to accommodate to the point of undue hardship, he says. IMPORTANT QUESTIONS AROUND UNDUE HARDSHIP Source: British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999) ("Meiorin") Has the employer investigated alternative approaches that do not have a discriminatory effect? If alternative standards were investigated and found to fulfil the employer's purpose, why were they not implemented? Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose? Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?

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