The Newfoundland and Labrador Court of Appeal has found a labour arbitrator failed to properly analyze an employer’s efforts to accommodate an employee taking medical cannabis for his chronic pain.

The International Brotherhood of Electrical Workers initially filed a grievance on behalf of one of its members, who was refused employment by Valard Construction for failing to pass a drug test after disclosing his use of medical cannabis. In arbitration, the company asserted that, while denying employment on the grounds of the employee’s medical cannabis use constituted a case of discrimination prohibited by the Human Rights Act, it was done so due to “good faith occupational qualification” or the ability to work unimpaired.

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While the union noted there were no other positions onsite the employee could have filled, it argued the company still failed to accommodate his disability.

The labour arbitrator denied the grievance, noting the employee would have been in a safety-sensitive position and there was no alternate medicine that could manage his condition. As well, Valard would have no way to assess the employee’s potential impairment on the job site given the lack of established scientific or medical standard for cannabis impairment, the arbitrator wrote, and “the inability to measure and manage that risk of harm constitutes undue hardship for the employer.”

The Newfoundland Supreme Court of Appeal concluded the arbitrator’s decision had been reasonable in a 2019 judicial review of the case. However, the court of appeal found the judge had erred in his judgment because the arbitrator had completed only a partial analysis of whether the employer’s attempts to accommodate the employee’s disability would have constituted undue hardship. The court chose to remit the case back to the arbitrator for further analysis.

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“In order to discharge the onus of establishing that to accommodate the grievor would amount to undue hardship, it was necessary for the employer to demonstrate that to assess the grievor for impairment by some other means on a daily or periodic basis would result in undue hardship,” wrote Justice B. Gale Welsh. “The absence of a test or standard [for cannabis impairment] does not lead inexorably to the conclusion that there is no means by which to determine whether an employee, by reason of ingesting cannabis, would be incapable of performing a specific job, including a safety-sensitive job.”

Without that part of the analysis, she wrote, it wouldn’t be possible to determine whether the employee should have been hired.

According to Rebecca Wise, an employment lawyer at Torys LLP, it’s important to note what the court’s decision didn’t say. “This decision is not saying that this particular grievor ought to have been hired by the employer or that there was a means of accommodating the grievor to the point of undue hardship,” she wrote in an email to Benefits Canada. “The issue was that the employer failed to provide evidence to demonstrate that the accommodation on an individual basis would result in undue hardship.

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“. . . I think that is an important distinction. When the matter eventually goes back to the arbitrator, it is entirely possible the employer will be able to prove that there are no other means of accommodating the grievor without undue hardship.”

Accommodating an employee’s disability, whether in a safety-sensitive industry or not, requires an individualized assessment rather than a one-size-fits-all approach and will depend on the disability itself, the employee’s position and the type of accommodation they request, noted Wise.

“Similarly, whether or not accommodation rises to the level of undue hardship will always depend on, among other things, the type of accommodation, the nature of the work, the financial circumstances of the employer and other factors.”

However, she added, the Canada Labour Code stipulates only three factors relevant to determining undue hardship: cost, any outside sources of funding and health and safety requirements.

In a concurring judgment, Justice Gillian Butler said the arbitrator’s analysis that the duty to accommodate didn’t extend to a requirement for Valard to accept a risk resulting from the possibility of impairment was “contrary to well-established workplace disability discrimination principles because the arbitrator and applications judge relied upon ‘potential risk’ as an independent justification for discrimination.”

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In a dissenting opinion, Justice Lois Hoegg disagreed with her colleagues’ assessment that Valard didn’t demonstrate that accommodation couldn’t be made or that the arbitrator made a decision without that information. She also disputed the argument that the employee wasn’t individually assessed, given his condition, prescription and how he ingested cannabis informed the medical evidence and the arbitrator’s reasoning. “The grievor’s possible impairment resulting from his ingesting cannabis does not lend itself to accommodation in the same way a visual or other physical impairment would,” she wrote.

She also noted the union’s acknowledgment that there were no other onsite positions available that weren’t safety sensitive.

“The practical effect of my colleagues’ reasoning is that the employer should give the grievor the chance to work on the site to see if he can perform the job safely. This is a hit or miss proposition . . . . This is an unfortunate situation for the grievor, who is fully entitled to choose the medication and treatment for his condition. However, his chosen medical treatment cannot be permitted to trump the safety of other workers, the project’s success or the grievor himself.”

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