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Employer Had to Conduct an Individualized Assessment of Employee Authorized to Use Medical Cannabis

Author: Grazia Hanea

August 11, 2021


 

The Court of Appeal of Newfoundland and Labrador (NLCA) released a seminal workplace disability discrimination decision on June 4, 2020 concerning the employer’s duty to accommodate an employee’s use of medical cannabis to the point of undue hardship. International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20 (CanLII) has since been named one of the most important developments in labour law for 2020.


The grievor, Mr. Scott Tizzard, had over 30 years of experience as a labourer. From 2015 until his lay-off in 2016, he worked as a General Labourer with H.J. O’Connell Ltd., one of the contractors on the Lower Churchill Transmission Construction Project. His direct supervisor had been aware of the fact that Mr. Tizzard had used prescription cannabis for several months with no safety-related incidents reported.


In 2017, the grievor obtained a position with Valard Construction, another contractor on the Project. Considering that his position was deemed to be “safety-sensitive” pursuant to the terms of the Collective Agreement, the position was conditional upon successful completion of drug and alcohol testing. The grievor disclosed that he had to use medical cannabis to manage chronic pain caused by Crohn’s disease and osteoarthritis. The employer subsequently refused to hire the grievor after he failed to pass the drug test, testing positive for cannabis.

The union, International Brotherhood of Electrical Workers (IBEW) Local 1620, filed a grievance on the basis that the employer had discriminated against Mr. Tizzard based on his disability and use of medically authorized cannabis.


At the grievance hearing, the arbitrator concluded that although the grievor had been discriminated against on a ground prohibited by section 9 of NL’s Human Rights Act, the employer’s inability to measure impairment from cannabis and manage the potential risk of harm in a construction environment constituted undue hardship. The applications judge dismissed the grievor’s application for judicial review. On appeal, the NLCA addressed the employer’s duty to accommodate the grievor’s disability.


Namely, the NLCA found that the applications judge erred in concluding that the arbitrator’s decision was reasonable. The arbitrator’s decision was unreasonable as he failed to address the employer’s obligation to accommodate the grievor, which included an individualized assessment of his ability to perform the job safely:


[71] The grievor had worked on this safety-sensitive site for fifteen months without incident; he maintained an impeccable safety record and was described by his supervisor as “a great worker, skilled and knowledgeable” and “always safe”. For five of the fifteen months of his employment, the grievor was taking his prescribed drug and had brought this to the knowledge of his supervisor. It was only when a shortage of work with one contractor led the grievor to seek an alternative position on site that the employer refused to put the grievor to work.


[72] The employer argued that this work history was irrelevant because it was with another contractor. I would disagree. The Respondent Employers’ Association is the sole and exclusive bargaining agent for all contractors on the project and a party to the collective agreement.


[73] The employer also argued that it may have been by pure luck that the grievor had no incident at work while taking the drug in question. I would characterize that as unfounded speculation.


[74] The grievor’s ability to perform as a labourer under the responsibility of a site supervisor was established by his own employment history; assessment of his functioning was addressed by Dr. Norman of the Cannabinoid Medical Clinic. In my view, this evidence provided a form of individualized assessment, which, (because the arbitrator was wrongfully focused on risk instead of ability), was ignored.


In short, the NLCA allowed the grievor’s appeal and remitted the matter for reconsideration. The employer fell short of its duty to accommodate Mr. Tizzard’s disability. It failed to establish, through some form of individualized assessment, why the grievor could not be accommodated so as to maintain reasonable site safety. The NLCA listed some of the ways in which reasonable site safety might be met if the grievor performed modified duties, such as reporting dosage increases, accepting independent medical assessments at random intervals, accepting closer supervision to assess his functioning.


If you have any questions regarding the duty to accommodate or workplace disability discrimination, we encourage you to contact Daria Strachan or any of the lawyers at Shields Hunt Duff Strachan.

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