By Rhonda B. Levy and Monty Verlint on ….July 14, 2020
On June 4, 2020, in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20 (“International Brotherhood”), the Court of Appeal of Newfoundland and Labrador overturned the decision of the province’s Supreme Court, which addressed an employer’s obligation to accommodate medical cannabis use for workers in safety-sensitive positions.
The case involves an employee denied employment on a safety-sensitive construction project due to his use of medically prescribed cannabis. On judicial review, the Supreme Court agreed with the arbitrator that given the employer’s inability to measure and manage the risk of cannabis impairment based on currently available technology and resources and the unavailability of non-safety-sensitive positions, the employer could not accommodate the employee without undue hardship.
The Court of Appeal of Newfoundland and Labrador concluded that the arbitrator’s decision was unreasonable because he considered the class of individuals who use medical cannabis rather than individually assessing whether, regardless of the absence of a scientific or medical standard, the grievor could safely perform the job despite his use of medical cannabis, without undue hardship to the employer. The court said:
…the analysis requires an assessment regarding what alternatives were investigated by the employer that may have allowed for individual testing of the grievor. Was a scientific or medical standard the only option? If so, why? If alternate options were identified, why were they not implemented? For example, was a functional assessment of the grievor before his shift considered? If rejected, why? What discussions were had with the Union to identify and assess alternate options for determining whether the grievor was capable of safely performing the job despite his use of cannabis in the evening? The employer failed to address these questions or provide evidence as necessary to discharge the onus of demonstrating that accommodation of the grievor on an individual basis would result in undue hardship.
The conclusion follows that the arbitrator’s decision was unreasonable as he failed to address the employer’s onus to establish that to accommodate the grievor by means of individual assessment of his ability to perform the job safely, regardless of the absence of a scientific or medical standard, would result in undue hardship. (paras. 35 and 36)
The court allowed the appeal and remitted the matter for a consideration of whether there is another means of individual assessment of the grievor’s ability to perform the job safely without undue hardship to the employer, despite the absence of a scientific or medical standard.
Bottom Line for Employers
Given the decision of the Newfoundland Court of Appeal in International Brotherhood, employers may not continue to take the position that in the absence of reliable methods for measuring and managing the risk of cannabis impairment, they cannot accommodate employees who use medical cannabis without undue hardship. The Court of Appeal held that employers must conduct an individualized assessment of whether an employee can safely perform their actual job on their specific worksite despite their use of medical cannabis, without undue hardship to the employer; employers that fail to conduct such an analysis will be discriminating against a disabled employee. The Court of Appeal’s analysis is consistent with the procedural and substantive elements of the duty to accommodate. In other words, even if they are not able to ultimately accommodate the employee, the procedural steps taken by the employer will be heavily scrutinized by the court in determining if the employer discharged its obligations.
The decision of the Court of Appeal may be subject to appeal. We will report on any significant developments that may occur.