eCaseNote 2019 No. 02 March 20, 2019 / eCasenote

The Employer’s Duty to Accommodate Potentially Impaired EmployeesInternational Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc. and Valard Construction LP 2019 NLSC 48 (CanLII)

Introduction

In this case, the Supreme Court of Newfoundland and Labrador provides guidance on the limits of an employer’s duty to accommodate a potential employee who takes medically prescribed cannabis. This case is particularly relevant to employers who employ in “safety-sensitive” positions.

Background

A union member (the “Grievor”) applied for a safety-sensitive position with Valard Construction (the “Employer”) on the Lower Churchill Transmission Construction Project. The Employer denied the Grievor employment because he took medically prescribed cannabis each evening to manage pain. This created a risk of impairment on the jobsite. The matter went to arbitration.

The Union argued that by not hiring the Grievor due to his cannabis use, the Employer was discriminating against him based on disability. The Union argued that the Employer had failed to uphold its duty to accommodate the Grievor. It should have made another position available. In its defence, the Employer argued that this accommodation would constitute undue hardship as there were no other safety-sensitive positions available in the company.

The Decision

The arbitrator and the reviewing judge both found that while the Employer did have a duty to accommodate the Grievor as a disabled employee, to do so in this case would amount to undue hardship. The Employer could not accommodate the Grievor by putting him in another safety-sensitive position because none were available. Accommodation was not possible through pursuing other medication as the Griever and his physician had already exhausted all other options. Further, the Employer was not obligated simply to accept the risk of having a potentially impaired employee. This was especially true here, where the position was for a construction work requiring physical dexterity and mental focus. Arguably, this same argument might be viable in any safety-sensitive position.

Implications

The goal of accommodation is to ensure that an employee who can work has the opportunity to do so. To achieve this goal, employers must be flexible and work collaboratively with their employees.

This decision establishes the limits to an employer’s duty to accommodate employees in safety-sensitive positions whose medications, including cannabis, leave them potentially impaired. Importantly, it makes clear that employers are not expected simply to assume the risk associated with having a potentially impaired employee in a safety-sensitive position—to do so constitutes undue hardship.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.