Must employers accommodate medical cannabis? Maybe not

Junaid Malik

The emphasis is in “may not”, or at least that is the conclusion reached by a court in Newfoundland. In International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. v IBEW, Local 1620 (Tizzard), Re, 2018 CarswellNfld 198, the court found that the employer, Valdar Construction LP (“Valdar”), did not make a mistake when it dismissed an employee who was vaping medical cannabis.

The court came to this conclusion because Valdar has a safety-sensitive workplace, and because Valdar did not have a way to measure the employee’s impairment.

Generally, employers must make reasonable accommodations for their employee’s with disability-related needs. And, while the obligation to accommodate is not endless, it is typically a heavy burden. The courts use the phrase “undue hardship,” that is the point at which an employer is not required to accommodate the disability-related needs of an employee. Undue hardship depends on the context, and International Brotherhood is a refreshing reminder that, in certain circumstances, an employer may suffer undue hardship by attempting to provide any sort of accommodation.

Background

Valdar engages in the construction of towers and related infrastructure for the delivery of electricity from Labrador to Newfoundland, as such the workplace is safety-sensitive.

The dispute involved an employee who is a construction worker with over thirty years of experience; he worked with Valdar for a little over a year. The employee suffers from osteoarthritis and Chron’s disease. As a result of his medical conditions, the employee endures severe chronic pain and discomfort. He began using medical cannabis as a form of treatment, after obtaining approval from his healthcare providers.

The employee vaped about 1.5 grams of cannabis every evening after work. He reported his cannabis prescription to his direct supervisor. For several months the employee’s use of cannabis coincided with his work on the job, though the employee was not involved in any safety-related incident during this time.

Valdar laid off the employee. Despite there being a number of vacancies, Valdar refused to hire the employee due because of his medicinal cannabis use and the safety concerns present in these positions. The employee’s union launched a grievance, and took the position that Valdar had breached a term of the collective agreement by failing to provide priority hiring to a union member. Moreover, the union alleged that the refusal to hire the employee was an act of discrimination — arguing that the employee’s pain constitutes a disability.

The arbitration

Valdar took the position that the employee’s use of medical cannabis made it impossible to determine impairment. This situation, Valdar argued, made it impossible to accommodate the employee without sustaining undue hardship given the safety-sensitive nature of the workplace.

The parties put the grievance to arbitration, in accordance with the collective agreement. The hearing before the Arbitrator was lengthy, as it involved numerous lay and expert witness. Ultimately, the Arbitrator held in Valdar’s favour, ruling that Valdar was unable to measure impairment of the employee’s cannabis use, based on currently available technology and resources. And an inability to measure that risk of harm constituted undue hardship. The union appealed the arbitrator’s decision for judicial review.

The appeal

On appeal, the court ultimately upheld the Arbitrator’s decision, finding that Valdar could not assess the risk the employee imposed, and because of the safety-sensitive nature of all of the vacant positions, Valdar would not be able to accommodate without enduring undue hardship. The court identified several findings made by the Arbitrator which are worth considering:

• Using cannabis can impair the ability of a worker to function safely in a safety-sensitive workplace;
• Cannabis impairment can last up to 24 hours after consumptions;
• The user may not know that they are impaired; and
• There was no available means or method for accurately testing cannabis impairment in the workplace.

Takeaway

Even though the dispute in International Brotherhood has been held in Valdar’s favour, it would be unwise for an employer to treat claims for accommodation related to medical cannabis use with a relaxed attitude. Furthermore, it is unclear how this decision will be treated by tribunals and courts in other provinces.

The recent legalization of cannabis use for recreational purposes has added to the current uncertainty. Time will tell whether the drug’s consumption will tend more towards alcohol versus tobacco consumption, from a regulatory standpoint.

Lastly, undue hardship is a high bar, and while the employer in this case was able to establish undue hardship without making any efforts to accommodate, this case demonstrates the court’s emphasis on context. Where questions of accommodation arise, both employers and employees should be critical in assessing safety implications in the workplace. And if impairment is involved, they should ask whether the employer can measure it.

Junaid Malik is a litigation associate with Lawrences Lawyers of Brampton, Ont.