The Newfoundland Court of Appeal recently handed down a decision that appears to inject uncertainty into employers' attempts to accommodate workers in safety-sensitive positions who consume medical cannabis. While the case was decided in Newfoundland, it remains relevant due to the lack of similar decisions made in Alberta and may be persuasive for future cases in Alberta and the Northwest Territories.
The issue at bar was initially set for arbitration, the decision for which is contained in International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers' Association Inc., (2017 CanLII 59779 (NL LA)). The union filed a grievance on behalf of one of its members who was refused employment when he failed to pass a drug test. The grievor, a general labourer, had disclosed that he used medically authorized cannabis to manage chronic pain. The grievor's use of cannabis was related to a medical condition, was prescribed, and was only used in the evening.
The employer felt that the position was safety-sensitive and that it could not accommodate the labourer without incurring undue hardship. The matter was remitted to arbitration, where the arbitrator agreed with the employer's conclusion. The principal reasons for his conclusion were that:
- the scientific evidence suggested impairment could last up to 24 hours after use of cannabis;
- that only a specially trained physician could review the patient and understand the interaction between cannabis impairment and appropriate work restrictions in a given fact situation; and
- that there were no readily available testing resources that would allow an employer to adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis.
As a result, the grievor's use of medically authorized cannabis created a risk of impairment on the job site and the inability to measure the level of impairment and manage the risk of harm constituted undue hardship. The decision was appealed, and the Newfoundland Supreme Court agreed with the arbitrator.
The Court of Appeal overturned the prior judgments (2020 NLCA 20), issuing three separate decisions. In the majority reasons of Welsh J.A., he concluded that the arbitrator failed to fully complete the analysis on the Meiorin criteria for accommodation. In particular, he took issue with an apparent failure to provide an individualized assessment of the grievor's situation, including assessing the alternatives investigated by the employer that may have allowed for individual testing. Butler J.A.'s concurring reasons placed more emphasis on the "possible risk" of impairment, noting that the employer had to go further than establishing that someone posed a risk and that the focus needed to be on ability. The employer needed to establish through an individualized analysis why allowing a particular individual to perform a particular job would not enable the employer to maintain reasonable site safety short of undue hardship. He noted that other prescription drugs had recognized side effects, and no screening was applied to workers taking medications such as Tylenol 3 or Ativan.
The dissenting reasons of Hoegg J.A. agreed with the arbitrator and lower court's decisions. He took issue that the majority decision would effectively lead to the worker having to first work on the job site before the employer could assess the resulting safety risks.
The majority Court of Appeal decision does not overall up-end the duty to accommodate analysis, and it continues to rely on the well-established Meiorin test. However, its application of the Meiorin criteria, particularly concerning individualized assessment, is difficult to reconcile with the arbitrator's decision. The arbitrator's decision specifically addressed the difficulties with assessing the particular grievor and involved a detailed analysis of the medical effects of the grievor's specific rate and amount of consumption. As a result, the decision inserts uncertainty into determining the extent of individual assessment required in such circumstances.
Given that the decision was remitted back to the arbitrator, we may see an attempt to address the Court's concerns, the result of which will hopefully help provide more clarity on the extent of individualization required. In the meantime, cannabis users and employers must remain wary of the evolving requirements as the Courts interpret prior jurisprudence to consider the relatively new extent of medical cannabis use. For employers, the lack of clear guidelines also makes it difficult to determine the outcome of any attempts to accommodate a worker in such circumstances. If such a situation arises, employers should review the facts and consult their counsel as necessary. Please contact any member of Field Law's Cannabis Industry Group for assistance creating or reviewing cannabis policies, or navigating requests for accommodation.
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