eCaseNote 2018 No. 03 August 13, 2018 / eCasenote

Drawing a Line in the Sand: Medical Marijuana in Safety-Sensitive Positions
International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers’ Association Inc.

Background

This Newfoundland and Labrador arbitration decision involves a grievance against Valard Construction (“Valard”) alleging discrimination against Mr. Harold Tizzard because of disability when they refused to hire him for two separate positions with the Lower Churchill project.

Mr. Tizzard was diagnosed with osteoarthritis and Crohn’s disease in 2008. He was prescribed medical marijuana to help alleviate his pain after conventional treatments proved ineffective. Mr. Tizzard had been working in the construction industry for some time and was referred by his Union for positions with Valard. He was hired pending a satisfactory drug and alcohol test but failed the drug test because of his medical marijuana prescription.

The NL Human Rights Act requires employers to undergo an accommodation process after encountering a worker with a disability that may affect that worker’s ability to perform an occupational requirement. The employer must consider whether they can offer work on a meaningful basis without creating undue risk of harm to the worker, the employer, other workers, and the public.

The Decision

The positions Mr. Tizzard applied for were safety-sensitive and no alternative position that was not of a safety-sensitive nature was proposed by the Union. Additionally, there is currently no readily available, accurate test to detect marijuana impairment on a daily basis at the job site. Without a testing method, the employer was unable to measure impairment and was, as a result, unable to mitigate the risk. Therefore, the question before the Arbitrator was: Should an employer be required to compromise safety and assume the risk associated with marijuana impairment in an effort to accommodate?

The Arbitrator pointed to the Occupational Health and Safety Act, which states that:

An employer, supervisor or worker shall not enter or remain on the premises of a workplace or at a job site while his or her ability to perform work responsibilities is impaired by intoxicating substances or another cause that endangers his or her health or safety or that of other workers.

Ultimately, he found that a safety hazard would be introduced to the workplace by Mr. Tizzard’s potential residual impairment. This increased safety risk was determined to constitute undue hardship and, as a result, Valard was not required to accommodate Mr. Tizzard.

The Application for Judicial Review

On June 27th, 2018 the Union filed an application in the Supreme Court of Newfoundland and Labrador regarding this decision. The application filed indicates that counsel will request that the Court quash the Arbitrator’s decision on the grounds that he did not consider:

    (1) whether Vallard took steps to accommodate Mr. Tizzard’s disability;
    (2) that he erred in his conclusion that accommodating Mr. Tizzard’s disability would cause Vallard undue hardship;
    (3) that he moved beyond his jurisdiction by concluding that a treating physician is not in a position to determine whether or not their patient is fit for work; and,
    (4) that the finding that Mr. Tizzard “chose a therapy” perpetuates the very stereotypes that human rights legislation, such as the Human Rights Act, strives to eradicate.

The Effect (in the interim)

Although medical marijuana has been legal in Canada for some time, there has been little opportunity to grapple with what that means in the workplace, particularly in environments where safety is a significant concern. The decision is limited to safety-sensitive positions, but it definitively states that an employer’s inability to measure and manage the risk of harm associated with medical marijuana patients working in safety-sensitive positions constitutes undue hardship.

In effect, this decision draws a line in the sand – until such a time that accurate, reliable testing for marijuana-related impairment is available, the risk associated with potential impairment is too high. As a result, the undue hardship the risk causes the employer may affect accommodation in safety-sensitive positions. We will evaluate the judicial review decision if it is determined that the arbitrator was wrong, or if the decision draws the line elsewhere.

A Lesson for Unions

The Arbitrator was forced to limit his decision to positions of a safety-sensitive nature because no alternative position that was not safety-sensitive was suggested by either party. While it is the employer’s responsibility to accommodate a worker, he made a point of noting that the burden does not fall entirely on the employer. A union that is aware of the positions available and has the power to suggest accommodating an employee by placing them in a position where there would be fewer safety concerns should do so, especially if the employee’s only goal, as was the case with Mr. Tizzard, is to work.

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