Long-service Saskatchewan welder disciplined for violating drug policy with medical marijuana

Steelworkers alleges discrimination because of worker's medical prescription

A long-service journeyman welder with Mosaic Potash Colonsay’s Saskatchewan mine site was disciplined for his use of medical marijuana as a violation of the employer’s drug and alcohol policy.

The man suffered from an anxiety disorder and headaches. He obtained a prescription for medical marijuana and authorization from the federal government for that prescription. He testified he did not use the medical marijuana at work, but used it in his personal time. He disclosed this information to the employer’s workplace occupational health registered nurse.

Following that disclosure, the welder was suspended from the workplace and placed on paid leave because his prescription was prohibited under the employer’s drug and alcohol policy.

He was told to explore other treatment options that did not violate the policy or remain off work until the treatment was no longer in violation of the employer’s policy.

He chose to discontinue his marijuana use and returned to work on Jan. 12, 2015.

However, the welder filed a grievance through his union — the United Steelworkers (USW) Local 7656 — alleging discrimination because of his medical prescription.

In relation to the issue, the employer had requested he disclose his medical records. The employer requested the union disclose his application for medical marijuana authorization, the authorization he received, and records demonstrating the quantities and strains purchased. The employer also requested all documentation from the welder's doctor on his medical conditions treated by medical marijuana, the treatments proposed and the treatments taken.

The union, however, was not willing to disclose medical records pertaining to his medical conditions or the treatments that were proposed and subsequently undertaken.

The union argued the medical records were not relevant to the grievance. The employer disciplined the employee because he held a prescription for medical marijuana and the issue was limited to whether that discipline was arbitrary. Whether his condition could be treated with alternative methods was not at issue.

The employer, however, argued the fact of whether the welder did in fact suffer from the medical condition claimed, whether the employer had to accommodate that condition and whether alternative treatment was available was relevant to the grievance.

The employer was required to accommodate the underlying disability, the employer argued, not the prescription. The employer was also, it stated, bound to prevent any employee impaired by alcohol, drugs or any other substance to work in the mine.

“I do not see how the employer can put the existence of the grievor’s underlying medical condition into issue,” said arbitrator William Hood. “It follows that if the underlying medical condition is not an issue at this point, medical documentation or information relating to ‘underlying disability’ is not relevant, let alone ‘arguably relevant’ to the matters in issue in the grievance.”

However, Hood ruled the medical records were relevant to the other issues raised. The employer called direct attention to the distinction between its obligation to accommodate disability, and not the employee's prescription for medical marijuana.

“I do not see how the employer would be able to argue its case in this regard if it was not permitted to have access to at least part of the grievor’s medical records,” Hood said.

Hood ruled the employer was not entitled to receive his complete medical records but, where the medical records touched upon the treatment proposed or undertaken, they should be produced to the employer. Hood also ruled that the union could redact any portions disclosing information about the welder's underlying conditions.

Reference: Mosaic Potash Colonsay ULC and the United Steelworkers (USW) Local 7656. William F.J. Hood — arbitrator. Kevil Wilson for the employer, Gary L. Bainbridge for the union. April 7, 2016.

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