Canadian human rights laws provide that a worker who uses medical cannabis to treat a disability, and who is employed in a safety-sensitive workplace, is entitled to be accommodated by his or her employer to the point of undue hardship.
Until recently, the case law provided that an employer can show undue hardship because there is no scientific and reliable method of measuring impairment, and therefore risk, from the use of medical cannabis.
This past summer, the Court of Appeal of Newfoundland and Labrador in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc. overturned this finding.
The worker in this case applied to work at a construction site, which everyone agreed was a safety-sensitive workplace. As part of his pre-employment drug screening he disclosed his authorization for medical cannabis, which he used for pain management.
He did not pass the drug test and the employer refused to hire him.
His union put forward a grievance. The arbitrator found that, while the worker was discriminated against, the employer could not accommodate him without undue hardship.
The arbitrator held that the use of medical cannabis created a risk of impairment on the jobsite and the employer could not readily measure impairment from cannabis based on the available technology and resources. The inability to measure and manage that risk of harm constituted undue hardship for the employer.
Unfortunately for employers, the union was not satisfied with this finding and the case ended up before the Court of Appeal.
The majority of the Court of Appeal held that for the employer to discharge its duty to accommodate the worker to the point of undue hardship, it was necessary for the employer to consider an individualized assessment of the employee, rather than relying on the absence of a test or standard. In other words, the court held that the employer should have considered other options or alternatives to a scientific or medical standard or test, such as a functional assessment of the worker before each shift, or some other means of assessing his ability to perform the job safely.
If the employer had considered other options or alternatives, the employer would then need to demonstrate why they were rejected in favor of a scientific or medical standard or test.
The Court of Appeal also held that until the additional component of the analysis (the individual assessment) has been completed, it is not possible to determine whether the worker should or would have been hired. As a result, the matter was remitted for a determination of whether there is another means of individual assessment of the worker’s ability to perform the job safely which would provide an option for accommodation without undue hardship.
It remains to be seen what this individualized assessment might consist of, with the concern that it may require the employer to take safety risks in order to see if the worker can perform the job without causing an accident.
Until there is further direction from the court, employers will need to undertake an individualized assessment of an employee in a safety sensitive position who uses medical cannabis, before it can claim undue hardship and be relieved from accommodating the employee.
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