Canadian Labour Reporter

May 31, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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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

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