The Newfoundland Court of Appeal has overturned a lower court decision upholding an arbitration decision in which it was found that an employer’s refusal to employ an individual in a safety sensitive role due to regular use of medical cannabis did not violate the employer’s duty to accommodate the individual’s disability.
The arbitration decision, Lower Churchill Transmission Construction Employers’ Assn. v. International Brotherhood of Electrical Workers, Local 1620 (2018), 136 CLAS 26, concerned a grievor who applied for a job as a general labourer at a construction site, and was refused that job because he regularly used medical cannabis to treat chronic pain. The employer led expert evidence that there were no scientific methods available to accurately measure impairment from cannabis use, and thus no way to measure the risk of impairment in the workplace. The arbitrator accepted that evidence and found that the inability to measure impairment and manage the risk of impairment in the workplace constituted undue hardship.
The grievor’s union applied for judicial review of the arbitration decision, and that application was dismissed. The union then appealed the application decision to the Court of Appeal.
On appeal, the Court of Appeal found that the application judge erred in concluding that the arbitrator’s decision was reasonable. The Court held that the duty to accommodate required that the employer demonstrate that there were no reasonable or practical options available which would allow it to mitigate the risk of impairment in the workplace. The Court found that by only considering the option of scientific testing, the employer had not met its duty to accommodate. The matter has been remitted back to the arbitrator to determine whether there was another means available to the employer to assess the grievor’s ability to perform his job safely.
It is important to consider what the Court of Appeal’s decision does, and what it does not do. This decision does not stand for the proposition that employers have to allow an employee (or prospective employee) to use medical cannabis and work in a safety sensitive job. That issue will always be determined by the specific facts in each case – and when the arbitrator in this case considers whether there are other reasonable options, he could still determine there are none. What the Court of Appeal’s decision does do is remind employers that the duty to accommodate requires that a full range of options be explored before it is determined that an individual cannot be accommodated. Employers should always thoroughly document the accommodation process, including outlining the accommodations that were considered, and where applicable, why they were rejected. Employers should never dismiss an option without considering whether it would constitute undue hardship.
The Court of Appeal’s decision can be found here.