A recent appellate decision provides valuable guidance to employers on how to navigate the complexities of accommodating medical cannabis use by employees, both in safety-sensitive workplaces and more broadly. In International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc. [Lower Churchill], the Court of Appeal of Newfoundland and Labrador (“NLCA” or the “Court”) overturned a judicial review decision which held that an employer did not need to accommodate a worker’s medical cannabis use in a safety-sensitive workplace due to the lack of medical tests or scientific standards for assessing cannabis impairment (see our previous blog post on the original arbitration decision).
Facts and Procedural History
In Lower Churchill, a construction company refused to hire an employee for two safety-sensitive positions because he did not pass a pre-employment drug test. Notably, the employee disclosed that he had been prescribed medical cannabis and used it each night to manage chronic pain.
The employee’s union filed a grievance arguing that the employer had failed to accommodate his disability. In response, the employer argued that it could not accommodate the employee without undue hardship because his cannabis use created safety risks that it could not manage.
The arbitrator found that accommodating the employee’s cannabis use would result in undue hardship for the employer in the circumstances and dismissed the grievance, despite that the employee only used cannabis in the evenings and not before or during work hours. The arbitrator held that the employer could not be reasonably certain the employee was not intoxicated during working hours because residual cannabinoid intoxication is possible up to twenty-four hours after ingestion, available testing for cannabis cannot sufficiently determine impairment, and there is no scientific or medical standard for assessing the level of cannabis impairment. This decision was upheld on judicial review, which the union subsequently appealed.
The NLCA overturned the decisions below because it found that the employer had not established that it could not accommodate the employee’s medical cannabis use without undue hardship.
The NCLA held that, in the absence of accurate medical tests or scientific standards for cannabis impairment, the employer was required to demonstrate that it had explored other individualized methods of assessing whether the employee could perform work safely, such as functional assessments before each shift. The NCLA further held that the employer could not establish undue hardship unless assessing the employee in such a manner would result in undue hardship. The Court found that the employer had failed to establish that using a scientific or medical standard to assess the employee’s fitness for work was the only option available, and it failed to provide evidence that assessing the employee on an individualized basis would constitute undue hardship.
Accordingly, the NCLA ordered that the matter be remitted back to the arbitrator to determine whether the employer could accommodate the employee without undue hardship.
Lower Churchill makes clear that employers cannot rigidly rely on the absence of medical tests or scientific standards for assessing cannabis impairment to assert that they cannot accommodate medical cannabis use without undue hardship, even in safety-sensitive workplaces. Rather, when determining if medical cannabis use by an employee can be accommodated, employers must consider individualized means of assessing whether the employee can safely (and/or effectively) perform their duties, such as functional ability testing. Notably, the same can be said for situations involving employees who take other prescription drugs which can cause impairment, as there is similarly no scientific or medical means of measuring the level of impairment caused by such drugs.
More broadly, employers must always assess each request for accommodation on an individualized basis by considering all reasonably available means of accommodating each employee, in light of the particular circumstances of the employee, workplace, and position in question. Employers which fail to do so before making a decision that adversely affects an employee will breach their duty to accommodate and may face serious liability for discrimination.
As Lower Churchill was remitted back to the arbitrator, we will provide updates if their subsequent decision provides clarification on the type of individualized assessments that employers should consider using to accommodate medical cannabis use by employees, and when conducting such assessments may constitute undue hardship. As always, our team is ready to assist you with implementing effective accommodation and drug and alcohol policies, as well as any accommodation issues that may arise.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.