Because of potential safety issues, site declared dry
A worker who possessed a valid prescription for medical marijuana, but did not disclose it to his employer, triggered a termination when the company found out.
In 2015, Brendon Uprichard was offered a position as an assembler working at the Lower Churchill Project (LCP) in Labrador, N.L., after being contacted by a former colleague. The project will see a hydro-electric generating station built in Muskrat Falls, N.L.
Since December 2014, Uprichard had been taking legally prescribed daily medical marijuana for back, knee and hand pain, as well as for anxiety.
In April, he passed a pre-employment physical test, including one for drugs and alcohol. Because it was a potentially dangerous job, which included a power generating facility, reservoir clearing and transmission line construction, the company decided to make the facility a “dry site.”
Uprichard passed his pre-employment test because he did not consume marijuana for two weeks. On his written submission, he left the part blank where it asked about certain drugs and potential side effects.
The site policy also called for testing if the employer suspected a worker of being under the influence of an illegal drug or alcohol while on the job.
On Aug. 19, Uprichard was visited at the site by two managers during a safety audit.
When they came upon a pickup truck, they noticed a smell of marijuana emanating from inside. It was the truck that the crew used to reach the site that day, including Uprichard.
Eventually, the managers were advised of Uprichard’s medical marijuana prescription. During questioning, he admitted that if he were tested for marijuana at that time, he would not pass the test.
Uprichard regularly smoked off-site around 7:30 p.m. after his shift, by hiding his stash of dried marijuana in a ditch away from the residential camp. Then he would return to the camp and rest until his next work period. He testified that he was never impaired while he was working.
He was terminated Aug. 25 for violating the drug and alcohol standard.
The International Brotherhood of Electrical Workers argued that Uprichard was being discriminated against because of his disability and the employer could not institute an absolute prohibition against medical marijuana.
A “good faith occupational qualification” has been established, said arbitrator James Oakley, which is valid in denying the use of drugs on-site because “the policies are rationally connected to the safety-sensitive nature of the job, and the policies were adopted in the belief they were necessary to achieve the purpose of safety in the workplace.”
The employer did not refuse to accommodate Uprichard with respect to his use of medical marijuana. Therefore, this case does not violate the Human Rights Act.
As well, Uprichard contended the doctor who prescribed the drug advised him not to drive four hours after ingesting it, and he always complied with this order. But he violated a pre-condition of employment when he failed to disclose his prescription, said Oakley. “(Uprichard) did not notify his supervisor or manager before starting work of any potentially unsafe side effects.”
This constituted a violation of a safety absolute. “The LCP handbook states that violation of a safety absolute is grounds for termination of employment in the absence of exceptional mitigating circumstances. There are no exceptional mitigating circumstances established in this case. The contractor, Valard, had just cause to terminate the grievor’s employment," said Oakley.
Reference: Lower Churchill Transmission Construction Employers’ Association and the International Brotherhood of Electrical Workers, Local Union 1620. James C. Oakley — arbitrator. Darren Stratton for the employer. Phillip Hunt for the employee. March 9, 2016.
