Employer can conduct individual assessment to determine employee’s level of impairment, court says
In the absence of a scientific standard to determine whether medical cannabis use impairs an employee’s ability to safely perform a job, an employer should show that to accommodate the employee through an alternative means of individual assessment would cause undue hardship.
In International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2020 NLCA 20, the appellant union filed a grievance on behalf of one of its members, a general labourer terminated by the employer, Valard Construction, after he had failed a drug test and had disclosed his use of medically authorized cannabis for his chronic pain.
The employer contended that there was no reliable scientific or medical test to measure whether the employee was impaired, and if he was, the extent of the impairment given the specific circumstances.
The labour arbitrator denied the grievance, stating that the employee’s cannabis use amounted to a risk of harm on the worksite which the employer could neither measure nor manage. He agreed with the employer’s argument that there was no reliable scientific or medical test to determine the presence and extent of impairment. Although the employer had indeed discriminated against the employee, the employer could not accommodate the employee without undue hardship, said the labour arbitrator.
When the Supreme Court of Newfoundland and Labrador denied the union’s application for judicial review, the union elevated the case to the Court of Appeal of Newfoundland and Labrador, with the sole issue of the appeal revolving around the employer’s duty to accommodate the employee’s disability.
The Court of Appeal held that the arbitrator’s decision was unreasonable. The appeal court cited the three-pronged test laid down in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC),  3 SCR 3, more commonly known as the Meiorin decision.
According to Meiorin, there is a bona fide occupational requirement justifying the employer’s discrimination if the employer can establish a rational connection between the purpose of the requirement and the performance of the work, an honest and good faith belief that the requirement was necessary and a reasonable necessity of the requirement for the fulfillment of a legitimate work-related purpose.
In this case, to fulfill the third step in Meiorin, the employer had the burden of proving, on a balance of probabilities, that it would experience undue hardship in accommodating the employee who used medical cannabis.
Because there was no reliable scientific or medical standard, the employer had the onus of demonstrating that assessing the employee for impairment, through some other manner which is not a scientific or medical test, would lead to undue hardship, the appeal court held.
“[G]iven the individual nature of the possible accommodation, the analysis requires an assessment regarding what alternatives were investigated by the employer that may have allowed for individual testing of the worker. Was a scientific or medical standard the only option? If so, why? If alternate options were identified, why were they not implemented?” said the appeal court.
The appeal court, therefore, allowed the appeal and remitted the matter for a determination of an additional issue, which is whether there exists an alternate option involving individual assessment for the employer to determine whether the employee can safely perform his work duties despite the use of medical cannabis.
A news release by Littler LLP said that, because of this decision, “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.”