While it has been just over one year since the legalization of recreational cannabis, Canadians have had legal access to medicinal cannabis for almost 20 years. As a result, employers are well versed in balancing their duty to protect worker health and safety under applicable occupational health and safety legislation with the duty to accommodate (on a case-by-case basis) under applicable human rights legislation. This balancing act becomes evermore relevant when an employee occupies a safety-sensitive position.
In Everitt v Homewood Health Inc., 2019 AHRC 36, the Human Rights Tribunal of Alberta addressed accommodation of an individual who used medicinal cannabis in safety-sensitive workplaces. In dismissing the complaint, the Tribunal offered support for the notion that the unacceptable risk of cannabis impairment may be sufficient to constitute undue hardship. While the decision only has direct application in Alberta, it follows a similar analytical approach to International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48, that we wrote about earlier this year. In that case, the Court affirmed the Arbitrator's decision that the inability to measure residual impairment of cannabis constitutes undue hardship in a safety-sensitive workplace.
The complainant, a heavy consumer of cannabis for approximately 25 years and a member of a building trade union in the construction industry, alleged that the respondent discriminated against him when it refused to register him in the Rapid Site Access Program ("RSAP"). The RSAP is a voluntary program that provides pre-qualification to workers on safety-sensitive sites. Site owners agree to waive Pre-Access Tests for RSAP participant workers with active dispatch status, in exchange for RSAP participant workers passing an enrolment drug and alcohol test and agreeing to be subject to random drug and alcohol testing while at work. Workers who do not qualify for the RSAP or who do not wish to participate in the RSAP, are equally eligible for jobs on safety-sensitive sites, but must go through the traditional Pre-Access Test in order to obtain site access.
The complainant took the test but tested over the RSAP allowable limit for THC, a psychoactive constituent of cannabis. Specifically, on his pre-enrolment test, the complainant tested over 1200 nanograms per millilitre. The threshold test was 50 nanograms per millilitre. As a result, the complainant was denied enrolment in the RSAP.
Ultimately, the Tribunal dismissed the complaint because the complainant did not meet his burden of proof; he did not establish that his disability was a factor in the respondent's refusal to enrol him in the RSAP; and even if he established that his disability was a factor in the respondent's refusal to enrol him, the respondent could not have accommodated the complainant without incurring undue hardship.
In reaching its conclusion, the Tribunal was not satisfied on the balance of probabilities that the complainant required cannabis to treat his disability as it was troubled by the doctor's practice to authorize every patient who requested a medical authorization for cannabis unless there was a reason not to. Given the foregoing, the Tribunal did not find that the doctor reasonably and objectively believed that cannabis was the appropriate treatment for the complainant's disability.
In any event, the Tribunal held that there was no discrimination because it was reasonable and justifiable for the respondent to determine eligibility for enrolment in the RSAP without conducting an individualized assessment. Additionally, given the nature of the RSAP as a voluntary, streamlined, and alternative process for pre-qualifying workers to enter onto safety-sensitive work sites, the respondent could not accommodate the complainant absent undue hardship.
Moreover, the Tribunal held that the complainant's cannabis use posed an unacceptable safety risk in the circumstances. The expert witnesses agreed that cannabis is an impairing substance. They also agreed that impairment is extremely difficult to assess and that the impairing effects of cannabis can vary depending on a number of factors.
Here, the Tribunal looked at the complainant's heavy levels of consumption and was concerned that 1200 nanograms per millilitre would be a common level of THC for the complainant when he was consuming cannabis. In addition, it also considered that the complainant was authorized to possess 600 grams of cannabis even though the Health Canada guidelines listed 150 grams. The Tribunal also took into account the fact that the granting doctor's evidence was not reliable or of assistance for determining whether the complainant could safely work on safety-sensitive sites. Specifically, not only did the doctor not have a full medical history or a complete medical file from the complainant's long-term treating physician, the doctor also failed to consider a job demands analysis for the work that the complainant would be performing.
Lastly, the Tribunal rejected the complainant's argument that he was safe to work while consuming cannabis because he had procured work in the past and had not had a workplace accident. The fact that the complainant had not had a workplace accident did not mean that he was not a risk. Instead, it simply meant that he had not had an accident and the unacceptable safety risk remained. Given the foregoing, the Tribunal was satisfied that the complainant posed an unacceptable risk of impairment if he were to be dispatched as an RSAP participant worker.
Takeaway for Employers
For employers, while the decision only has direct application in Alberta, it may indicate a change in the case law in support of the proposition that the duty to accommodate (assessed on a case-by-case basis) may not require an employer to accept the risks of potential impairment from cannabis in a safety-sensitive environment.
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