'You have to be really careful or people can get hurt,' says employment lawyer offering insights, takeaways from recent case
A safety-sensitive Saskatchewan employer was justified in delaying a worker’s return to work following a reinstatement arbitration decision until it had satisfactory medical information about the worker’s impairment risk from medical marijuana, an arbitrator has ruled.
“If [an employer is] not satisfied that the medical information is good enough to reasonably understand if there’s a duty to accommodate or safety risks, then it should wait until it’s satisfied,” says Kit McGuinness, a labour and employment lawyer at McKercher LLP in Saskatoon.
“Especially in safety-sensitive positions, because drug and alcohol policies are more justifiable and more strictly applied - you have to be really careful or people can get hurt.”
Dismissal after absenteeism
The worker was a journeyperson welder at a potash mine in Vanscoy, Sask., operated by Nutrien. In early 2018, Nutrien determined that dismissal was justified for excessive absenteeism, but the worker disclosed that he had an alcohol addiction. An assessment concluded that he had a “severe substance use disorder” and he was referred for treatment.
In July 2018, the worker resumed working under a return-to-work agreement that required abstention from alcohol and drugs and unannounced substance testing for two years.
Nutrien’s drug and alcohol policy also required “periodic testing in cases where the employee is taking medications which are impairing or contain any of the substances in Appendix B and his seeking accommodation.” Marijuana was included in Appendix B. The policy also required employees who take medications that may cause impairment to seek accommodation before performing any work activities.
Medical marijuana prescription
In August 2019, the worker tested positive for cannabis. He was allowed to return under a second return-to-work agreement that extended random testing to September 2020. In April 2020, the worker received a prescription for medical marijuana using a vaporizer to treat insomnia.
The worker tested positive for cannabis shortly thereafter and was terminated for breaching the drug and alcohol policy and the return-to-work agreement, as well as failing to disclose the prescription.
However, an arbitrator found that the worker didn’t knowingly breach the policy and the agreement because he believed the prescription would be an exception. The arbitrator reinstated the worker with a suspension equal to the time from the date of dismissal to the decision. However, before returning to work, the worker and the union had to participate in a “return-to-work education and workplace expectations session with members of Nutrien’s management team.”
The day after the reinstatement decision - Aug. 4, 2021 - the union confirmed that the worker was still intending to use medical marijuana pending an appointment with his physician on Sept. 14.
On Aug. 9, Nutrien advised that the first step in the return-to-work process would be for the worker to undergo a drug and alcohol test, as the matter was being treated the same as any disclosure of medication or drug use under the drug and alcohol policy.
Intention to renew prescription
The worker was tested negative for all substances on Aug. 16. He said that he hadn’t had any marijuana since his prescription had expired in April. However, given his expressed intention to renew his medical marijuana prescription, Nutrien placed the worker on a paid leave of absence while it sought more information in order to evaluate any potential impairments and determine whether the worker needed accommodation.
The company gave the worker a form for his physician to complete asking specific questions about the worker’s ability to perform his job safely while using medical marijuana. The worker’s physician indicated that the worker had previously stopped using marijuana and two other medications, but he would be renewing prescriptions for all of them.
Nutrien’s medical review officer – who had expertise on the impairing effects of cannabis - determined that the information wasn’t sufficient to establish that the worker could return to work safely. The company also informed the union that it would be seeking judicial review of the reinstatement decision, so the worker was placed on an unpaid leave of absence on Oct. 18, pending the results.
It's a health and safety issue to have someone in the workplace who could be impaired and working in a safety-sensitive position, because they're potentially a danger to themselves and other people, says McGuinness.
“The employer has to be satisfied that this person can safely go about their duties,” he says. “There was a policy in place that talked about impairment and the employer was trying to get better evidence so they could understand the risks and the worker’s ability to discharge his job duties, but they weren't really getting anywhere.”
Fit to work at safety-sensitive employer?
In March 2022, Nutrien’s application for judicial review was denied, so the company sent another letter to the worker’s physician seeking updated medical information on the worker’s medications. The physician replied that the worker was fit to work in a safety-sensitive position while using the medications, including cannabis, without work restrictions or accommodations.
Nutrien’s medical review officer wasn’t satisfied that the specific questions around the amount the worker was prescribed and potential impairment had been answered sufficiently, so Nutrien asked the worker for permission for the review officer to consult with his physician directly. The worker declined because of the potential breach of confidentiality.
On June 20, Nutrien requested that the worker consent to an independent medication examination (IME). The worker didn’t respond and the union said it was seeking legal advice while it considered.
“An IME is not supposed to be something that's used as a first resort, it’s supposed to be something that is utilized in cases like this where there's an ongoing issue in getting satisfactory medical evidence,” says McGuinness. “The employer did give an option here, and it was to have the treating physician chat with [the medical review officer] or he goes for an IME.”
In October, the union and management met to discuss the worker’s return to work, but they were still at a stalemate. They tried again in early 2023, but to no avail. They then took the matter before the arbitrator who had issued the reinstatement decision.
Medical information requested
The union maintained that the medical information provided was sufficient as the worker’s physician cleared him for work without restrictions or accommodation, as long as the worker used the marijuana as prescribed. It also argued that the medical opinion of the physician, who had been the worker’s doctor for 10 years, should carry more weight than the medical review officer who had never examined the worker.
Nutrien said that the reinstatement order didn’t override its alcohol and drug policy or its right to manage its business in line with its safety obligations. It argued that the worker needed to either stop using marijuana or seek accommodation with medical information proving that his medications didn’t cause a safety risk at work.
The arbitrator noted that both sides clearly understood that the worker had to be medically cleared to return to work. The worker and the union co-operated by providing three letters in total from the worker’s physician indicating that the worker was fit to return to work, the arbitrator said.
However, the arbitrator found that there was a “stark difference” between the opinions of the worker’s physician and Nutrien’s medical review officer, who was an expert in the impairing effects of cannabis. This raised “sufficient doubt” about the physician’s conclusions and justified Nutrien seeking more information, the arbitrator said, noting that the workers’ physician didn’t provide specific answers about marijuana impairment.
“The union provided medical evidence, but I think it's pretty clear why the employer had some issues with the specificity and the quality of that medical evidence,” says McGuinness. “I can see why the employer said, ‘We're dealing with somebody in a safety-sensitive position, there are too many frailties with this evidence for us to reasonably reintroduce this person into the workplace and be confident that there’s not a potential OHS catastrophe lurking below the surface.’”
Entitled to more information about medical marijuana
The arbitrator noted that Nutrien suggested options to clarify the information through a consultation with the worker’s physician or an IME, but these were declined. As a result, Nutrien was justified in not permitting the worker to return to work, said the arbitrator.
Nutrien and the union were instructed to engage a qualified independent medical examiner to conduct an IME as soon as possible and make “every effort” to return the worker to the workplace while respecting legislated workplace safety requirements.
The role of Nutrien’s medical review officer with a particular expertise in cannabis impairment demonstrated the importance of using experts during a difficult accommodation or return-to-work process, according to McGuinness.
“Whether it's medical experts, legal experts, or external counsel, it's important with some of these accommodation or reintegration issues to take the proper avenues to make sure that you're protected,” he says. “You don't want to have some sort of serious incident because you didn't look hard enough at what types of risks were still there, even after you receive medical information.”
