Current medical science and drug testing technology is not sophisticated enough to determine impairment in many workplace scenarios.
As we have previously reported, employers overseeing safety-sensitive workplaces in this environment of uncertainty benefitted from authorities clarifying the limits of accommodation for employees who use medical cannabis (see our past blog post: Court Affirms Important Limitations for Accommodating Use of
In
The underlying arbitration award was related to a grievance filed on behalf of a union member who was denied employment in a safety-sensitive position on a construction project due to his authorized medical cannabis use. When the union member attended for his pre-employment screening, he disclosed his cannabis authorization, his daily cannabis use for pain management and he indicated that he would probably "fail" the drug screening. Eventually, the company refused to hire the union member and the grievance was filed. In the arbitral award, the arbitrator determined that it would be an undue hardship for the company to accommodate the union member because of the safety risk.
The arbitrator held that, once the issue of possible impairment from cannabis use arose, the employer was entitled to obtain medical information which satisfactorily demonstrated that the union member could safely perform his duties. Accordingly, without this clearance, there was no obligation on the part of the employer to hire the applicant and "test the risk". The arbitrator heard from experts and found that cannabis use can impair function in a safety-sensitive workplace for up to 24 hours and that there was no currently-available means for accurately testing impairment. The arbitrator concluded as follows:
The safety hazard that would be introduced into the workplace here by residual impairment arising from the Grievor's daily evening use of cannabis products could not be ameliorated by remedial or monitoring processes. Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the Employer if it put the Grievor to work. As previously stated, if the Employer cannot measure impairment, it cannot manage risk.
According to reasons from Welsh J.A. of the
In dissent, Hoegg J.A. would have upheld that the decisions of the lower court judge and the arbitrator as reasonable. The dissenting reasons argue that the upshot of the concurring majority's reasons would have required the union member to work on the work site and then for the employer to assess the safety risks. This outcome is counterintuitive and could give rise to injuries and negligence.
In our view, the reasons of Welsh J.A. and Butler J.A. are not easy to reconcile with the adjudicator's findings of fact which are tailored to the union member involved and specifically considered individualized approaches to accommodation: the adjudicator found that impairment could last until the next day from cannabis use and that the union member's "daily evening cannabis use of cannabis products could not be ameliorated by remedial or monitoring processes", as above. This was based on evidence which included individual cannabis dosage, method of ingestion and expert evidence. The only positions available were safety-sensitive on a safety-sensitive worksite. These findings indicate that the adjudicator was satisfied that the employer considered undue hardship in the individual context of the union member and that there were no alternative options available. The majority of the
The issues that remain from this decision are (especially in circumstances of enforcing workplace safety and drug and alcohol policies) what level and what standard of individualized assessment of accommodation must be met in order to meet the high threshold for undue hardship? Although this case may still wind through the courts, it clearly indicates that employers must be diligent when assessing whether or not undue hardship has been met.
Implications for Employers
Employers are obligated to provide safe work environments. When the duty to provide safe work and the duty to accommodate disabled employees come into conflict, employers must know their rights and the limits to those rights. As this case demonstrates, the limits of undue hardship with respect to medical cannabis are in some ways in flux. It is not a given that the duty to accommodate extends to a requirement that the employer accept a risk which compromises safety resulting from possible impairment from medical cannabis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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