There are countless Canadian corporations that have drug and alcohol policies. The validity of these policies as to medical cannabis may be in doubt as it is only recently in Canada that prescriptions for medical cannabis can be widely obtained.
In the case of International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employer’s Association Inc. the Court of Appeal of Newfoundland and Labrador released its decision on 4June2020 important for those with a prescription for medical cannabis and in the workforce.
An employee was refused employment due to his prescription for medical cannabis. His union challenged the decision of the arbitrator. The arbitrator noted that the potential employee’s position was considered as a “Safety Sensitive Position”.
In Canadian law it is accepted that employees with disability must be accommodated by an employer unless such accommodation causes “undue hardship” for the employer. The arbitrator’s decision stated as the employer was unable to readily measure impairment from cannabis based on currently available technology and resources and the inability to measure and manage that risk of harm constituted undue risk for the employer. Accommodation can take many forms but its purpose is to ensure an employee who is able to work can do so and persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. Accommodation short of undue hardship is a very high threshold for an employer to meet. That point is reached when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain.
The union representing the potential employee applied for a judicial review of the arbitrator’s decision. The initial decision of the trial judge dismissed any ground for judicial review of the arbitrator’s decision as the trial judge thought that the arbitrator’s decision was reasonable.
The Court of Appeal stated that Canadian law provides that decisions of administrative tribunals and arbitrators are subject to a presumption of reasonableness.
The appeal court said that the onus is on the employer to establish that to accommodate the potential employee would cause the employer undue hardship. The employer could not rely on an argument that because there was no means to determine where an employee was ingesting cannabis that this caused undue hardship on the employer. “The onus was on the employer to establish on the balance of probabilities that some means of individual testing of the greivor to assess his ability to perform the job was not an alternative.” It was not sufficient for the employer to say hiring an employee would constitute a risk. The employer must go further and establish through an individualized analysis why allowing this potential employee at the work location would not enable the employer to maintain reasonable site safety, short of undue hardship.
“The conclusion follows that the arbitrator’s decision was unreasonable insofar as he failed to address the employer’s onus to establish that to accommodate the greivor by means of individual assessment of his inability to perform the job safely, regardless of the absence of a scientific or medical standard, would result in undue hardship. “To establish undue hardship the employer had to establish an alternate option involving individual assessment for determining whether the potential employee could safely perform his job. As a result the trial judge’s decision was overturned and the matter referred back to arbitration.
If you feel you have been discriminated against by an employer as a result of the use of prescribed cannabis you should seek advice from a lawyer. A tool in your arsenal as far as cannabis goes is that you have obtained a prescription for it as opposed to self medicating (which most likely will be treated as recreational use) which will not help your case.