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Issue link: https://digital.hrreporter.com/i/1377949
months, receiving benefits from
WorkSafeBC.
McHale's doctor cleared him to
return to work on Aug. 8 on a part-
time basis with reduced exposure
to dust and chemicals. After two
weeks, he could return to regu-
lar duties as long as he avoided
"chemical and fume exposure."
Cariboo accommodated
McHale by assigning him to work
in the outside area of the mill,
where he helped maintain the fire
suppression system and performed
other general maintenance tasks.
In 2018, McHale was told to
work in the steam plant during a
maintenance shutdown the next
day. McHale refused, saying that
the gasses in the plant could af-
fect his condition. The union ad-
vised that McHale was afraid to
work in the steam or bleach plant
after the accident, so McHale
was assigned to the machine
room during the shutdown.
In April, McHale was diag-
nosed with post-traumatic stress
disorder (PTSD). In October, he
suffered a non-occupational in-
jury and was off work until Dec. 6.
McHale returned to work with
a different supervisor who as-
signed him to work in a confined
space that triggered his PTSD.
He went on medical leave for
two months.
The union provided Cariboo
with his PTSD diagnosis that rec-
ommended McHale be at least
temporarily restricted from work-
ing in enclosed areas and on pipes
that could explode and permanent-
ly restricted from working in the
area where the accident happened.
Cariboo expressed concern
about consistent pipefitting work
being available with McHale's
restrictions. Multiple return-to-
work plans were proposed that
involved gradual progression to
his regular duties in the steam and
bleach plants. However, on May
1, 2019, WorkSafeBC determined
that McHale's PTSD was perma-
nent and prevented him from per-
forming his pre-injury job.
In the summer of 2019, Cari-
boo, the union, and McHale dis-
cussed accommodation. Cariboo
said he couldn't work in the fire
suppression position because
he was restricted from working
in the steam and bleach plants.
In addition, all outside work was
going to be assigned by different
supervisors, so there wasn't suffi-
cient outside work for one perma-
nent full-time pipefitter position.
A millwright apprenticeship was
discussed, but it wasn't feasible
for McHale to fill it with his regu-
lar salary.
McHale eventually accepted a
labourer position at a significantly
lower wage, which Cariboo said
was the only full-time position
available that met his restrictions.
The union filed a grievance claim-
ing Cariboo didn't meet its duty to
accommodate.
The arbitrator found that
Cariboo reasonably relied on
the WorkSafeBC decision that
McHale couldn't work in the
bleach or steam plant. There were
multiple return-to-work plans
that intended to ease him into
regular work, but these kept get-
ting derailed.
The arbitrator also found that it
would have been undue hardship
to put McHale in the fire suppres-
sion role, as someone in that criti-
cal safety role would have to be
able to work in all areas of the mill.
The millwright apprenticeship
would also be undue hardship, as
"it is generally considered unrea-
sonable to require an employer
to provide training for a different
position for accommodation," the
arbitrator said.
The fact that McHale was ac-
commodated working as a pip-
efitter outside didn't mean it could
work as permanent accommoda-
tion, said the arbitrator, noting
that full-time pipefitter duties in-
cluded working in the steam and
bleach plants.
The arbitrator found that Cari-
boo made reasonable efforts to ac-
commodate McHale.
Reference: Cariboo Pulp and Paper and Unifor, Local 1115. Allison Matacheskie — arbitrator. Stephanie Vellins,
Alyssa Paez for employer. Allison Tremblay for employee. May 6, 2021. 2021 CarswellBC 1461
safety-sensitive position — but he
would continue to monitor him.
The following month, the
worker advised the union and
Teck of his medication change
before he returned to work from
a three-week offsite apprentice-
ship. Teck confirmed its policy
that "anyone using marijuana
recreationally or for medicinal
purposes poses a safety risk." The
company said that it would only
review an individual case if they
took a test in advance.
The worker told Teck that his
prescription was a "low THC/
CBD mix" of cannabis that con-
sisted of one-sixth to one-seventh
of a gram, five to six times per day.
The worker agreed to an indepen-
dent medical examination (IME).
The IME doctor submitted a
report stating that in his opinion,
there was no risk from the worker
using one-half to one gram of can-
nabis per day. The doctor noted
that the worker probably used
medical cannabis almost too cau-
tiously because he was aware
of the risk in the workplace and
therefore his pattern of use wasn't
a concern.
Teck sought an assessment
from another doctor, who submit-
ted a report opining that "the use
of medical marijuana is inconsis-
tent with working in a safety-sen-
sitive position." The second doc-
tor said that there was an issue of
elevated risk of cognitive impair-
ment, human error, accident and
injury associated with the daily
use of marijuana and the IME
doctor's report was based more
on anecdotal accounts than hard
evidence, while research associ-
ated marijuana use with cognitive
impairment. The second doctor
also noted that people who take
marijuana often can't recognize
their impairment, so the worker
couldn't be trusted to know if he
was a risk.
Teck maintained that the work-
er could only return to work if he
tested negative for marijuana. The
union filed a grievance.
The arbitrator found that it was
reasonable for Teck to prevent the
worker from returning to his po-
sition. The IME doctor's report
didn't directly address the com-
pany's concerns about impair-
ment and made broad statements
instead. The worker said that his
prescription included low levels of
THC — the ingredient in marijua-
na causing impairment — so there
was an impairment risk.
The arbitrator also found that
Teck never agreed that the IME
doctor would have final say on
the matter and the company was
entitled to another medical opin-
ion. The fact that it agreed to the
IME showed that it was open to
the idea of letting the worker re-
turn to his position with sufficient
medical evidence. However, the
IME doctor didn't adequately ad-
dress the company's concerns or
provide medical evidence sup-
porting the worker's return to his
safety-sensitive job while taking
cannabis medication before or at
work multiple times per day, the
arbitrator said.
"The evidence indicates that
the [worker] would likely be expe-
riencing some amount of impair-
ment that precludes him from
working in the warehouseperson
position," the arbitrator said in
dismissing the grievance.
Reference: Teck Coal (Elkview) and USW, Local 9346. Christopher Sullivan — arbitrator. Peter Gall, Melanie Vipond for
employer. Colin Gusikoski for employee. April 23, 2021. 2021 CarswellBC 1472
Doctor's report didn't address employer's concerns
PTSD barred worker from completing regular duties