Worker had marijuana prescription, didn’t inform Nutrien
A Saskatchewan worker’s failure to notify his employer about his medical marijuana prescription breached his return-to-work agreement but didn’t warrant dismissal, an arbitrator has ruled.
Lee Pepper was a welder for Nutrien, a Saskatoon-based fertilizer company, at its potash mine in Vanscoy, Sask. Early in 2018, Nutrien decided to terminate his employment for ongoing absenteeism issues. However, Pepper revealed that he had been suffering from alcohol addiction for several years.
A substance abuse assessment concluded that Pepper met the criteria for a “severe substance use disorder” and should not return to work until he received treatment. Pepper attended a detoxification program and a 30-day residential treatment program.
He returned to work on July 16 and signed a return-to-work agreement that required him to abstain from alcohol and non-prescription drugs while submitting to random urinalysis testing for two years. If he relapsed, he was required to inform Nutrien before his next shift and the company would work with him. If he didn’t inform the company of a relapse, his employment would be terminated.
The first random test on Aug. 13, 2018, came back non-negative for amphetamine. Pepper advised that he had a prescription and a medical review officer determined that proper use of the prescription wouldn’t pose a safety threat.
On Aug. 26, 2019, a random test came back positive for cannabis. Pepper was removed from work and Nutrien sought a substance abuse assessment, which found he didn’t meet the criteria for a cannabis use disorder. Pepper explained that he had eaten a marijuana gummy while off-duty a few days before the test. Nutrien required him to sign a second return-to-work agreement stating that it was prepared to terminate his employment if he failed to follow the terms. The second agreement was similar to the first and extended random testing to Sept. 9, 2020.
In April 2020, Pepper’s doctor prescribed him medical marijuana for insomnia, with instructions that he shouldn’t work for six hours after taking it. A couple of weeks later, a random drug test was requested and Pepper said that he’d likely fail, explaining that he had a marijuana prescription and hadn’t told anyone in HR.
Pepper tested non-negative for cannabis and explained that he didn’t think he had violated the policy because it was a prescription, like the amphetamine. A medical review officer noted that Pepper was taking his medication as prescribed, but it could interfere with his ability to perform safety-sensitive duties safely.
Pepper’s doctor cleared him for work as long as he followed the instructions on the prescription. However, Nutrien felt that Pepper had breached the return-to-work agreement by using cannabis and not disclosing his prescription. It terminated his employment on June 4.
The union argued that Pepper only used prescription drugs and followed his doctor’s instructions to avoid a negative impact at work, so there was no policy breach.
The arbitrator found that Pepper knowingly reported for work with marijuana in his system and failed to inform Nutrien of his prescription, even though he knew he would fail a drug test. This was a violation of the second return-to-work policy.
The arbitrator noted that neither the policy nor the agreement explicitly imposed a duty to disclose a medical prescription, but Pepper’s experience with more than a year of random tests and the positive amphetamine results “placed a responsibility on him to disclose his marijuana prescription,” the arbitrator said.
However, the arbitrator noted that Pepper wasn’t deliberately flouting the policy or abusing drugs or alcohol — he foolishly believed that Nutrien would treat the positive cannabis result the same as his positive amphetamine results.
The arbitrator determined that termination was excessive and ordered Nutrien to reinstate Pepper with a two-month suspension. Pepper was also required to participate in a return-to-work education session before his reinstatement.
