Benefits Canada has the latest on a case that’s been in the courts for quite some time now…
The Newfoundland and Labrador Court of Appeal has found a labour arbitrator failed to properly analyze an employer’s efforts to accommodate an employee taking medical cannabis for his chronic pain.
The International Brotherhood of Electrical Workers initially filed a grievance on behalf of one of its members, who was refused employment by Valard Construction for failing to pass a drug test after disclosing his use of medical cannabis. In arbitration, the company asserted that, while denying employment on the grounds of the employee’s medical cannabis use constituted a case of discrimination prohibited by the Human Rights Act, it was done so due to “good faith occupational qualification” or the ability to work unimpaired.
While the union noted there were no other positions onsite the employee could have filled, it argued the company still failed to accommodate his disability.
The labour arbitrator denied the grievance, noting the employee would have been in a safety-sensitive position and there was no alternate medicine that could manage his condition. As well, Valard would have no way to assess the employee’s potential impairment on the job site given the lack of established scientific or medical standard for cannabis impairment, the arbitrator wrote, and “the inability to measure and manage that risk of harm constitutes undue hardship for the employer.”
The Newfoundland Supreme Court of Appeal concluded the arbitrator’s decision had been reasonable in a 2019 judicial review of the case. However, the court of appeal found the judge had erred in his judgment because the arbitrator had completed only a partial analysis of whether the employer’s attempts to accommodate the employee’s disability would have constituted undue hardship. The court chose to remit the case back to the arbitrator for further analysis.