Recent arbitration case highlights challenges for employers
By Stuart Rudner
I have spent the past few years discussing “weed in the workplace” or, more accurately, how the workplace will be impacted by both medicinal and recreational marijuana. In our presentations, we often discuss the four types of users that employers can expect to encounter:
- the recreational user
- the addict
- the prescription user
- the self-medicator.
Each type raises different issues, and the way employers deal with them must be different. Some require accommodation, others do not.
As readers will know, there is a duty to accommodate disability, which includes medication, but any duty to accommodate is only to the extent of “undue hardship.” In most cases, we are focused on financial cost. However, when we talk about allowing an employee who is using medicinal marijuana to attend at work, the inquiry usually focuses on any health and safety risks to the employee, their colleagues, and anyone else.
Unfortunately, because it is often difficult to measure impairment caused by cannabis, and even more difficult to predict the extent of impairment in the future, this is often an extremely difficult exercise. We have not seen much case law that assesses this in a detail, although we will undoubtedly be seeing more as we move forward.
One recent arbitration case took this issue on. In Lower Churchill Transmission Construction Employers' Association and IBEW, Local 1620, the grievor suffered from osteoarthritis and Crohn's disease and was medically approved to use cannabis to treat his condition. He testified that he consumed 1.5 grams every night, which was inhaled by vaporization. According to the evidence, his prescription was for a THC level of less than 20 per cent. His evidence was that he would not have any signs of impairment on the following morning.
The grievor applied for jobs as a utility worker and as an assembler on the Lower Churchill project, where he had worked before for other employers. He disclosed his use of medicinal marijuana, and he did not get either job. The union alleged that he was well-qualified for both positions and this was a failure to properly accommodate his use of medication.
The employer defended its decision by asserting that
- the positions were safety-sensitive
- it had a legal obligation to ensure a safe workplace
- it was not feasible to accurately assess the degree and length of impairment that would be caused by the use of cannabis
- the safety risk that would be created by allowing the grievor to work while he was using medical cannabis would constitute undue hardship.
In assessing the evidence, the arbitrator noted that the authorizing physician had made what was apparently her standard recommendation: That patients avoid activities such as driving for four hours after inhalation. The evidence was that she did not think that his job performance would be affected, since he would be inhaling the cannabis in the evening and not working until the following day.
Ultimately, the arbitrator ruled in favour of the employer. First, he agreed that both positions were accurately described as safety-sensitive. Next, the arbitrator accepted that the duty to accommodate includes some assumption of risk by the employer, and that in order to assess whether undue hardship existed, an individualized assessment was required.
As we always tell employers, they are entitled to reasonable medical information that would disclose the extent of impairment or, framed differently, the potential impact on their ability to work safely.
Despite the doctor’s opinion that the grievor would only be impaired for four hours, the arbitrator took note of Health Canada's published information indicating that impairment from THC can last for more than 24 hours.
The arbitrator appears to have been particularly swayed by the inability to accurately measure the impairment of the grievor, agreeing that this was a significant concern for someone working in a safety-sensitive position while using medical marijuana.
The unavailability of testing to measure impairment — along with the difficulty of finding people who could reliably observe and measure impairment of judgment, motor skills and mental capacity — created a risk that was too significant, in the view of the arbitrator. As he summarized:
“The employer did not place the grievor in employment at the project because of the grievor's authorized use of medical cannabis as directed by his physician. This use created a risk of the grievor's impairment on the jobsite. The employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the employer.”
This is likely to be the first of many arbitral judicial positions that attempts to assess this issue. If the technology evolves so that impairment is more readily measurable, the analysis is likely to change. Employers should certainly not take this decision to mean that they can refuse to employ any individual who is using medicinal marijuana, even if the position is safety-sensitive.
As the arbitrator recognized, every situation must be assessed based upon its own particular circumstances. However, this decision does provide some guidance with respect to accommodation of medicinal marijuana in the context of employment.