Court of appeal critical of undue hardship assessment

Aug 25, 2020

The Court of Appeal of Newfoundland and Labrador has recently overturned a decision of the lower court, which had upheld an arbitration award on judicial review. Consequently, three separate reasons were issued by the Court of Appeal addressing undue hardship limits of accommodation which should be considered by employers regarding impairment from medication in safety-sensitive workplaces.

The original grievance International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc was filed by the union on behalf of an employee who had disclosed his use of medical cannabis, after which he was denied employment on the Lower Churchill Transmission Construction Project due to concerns regarding the potential for impairment in the performance of safety-sensitive duties.

As part of the ruling, the arbitrator had concluded that undue hardship would arise if the employer were to put the employee requiring medical cannabis to work. Since the employer could not adequately measure impairment, they could not appropriately manage the safety risk and thus, there would be an unacceptable increased safety risk if the employee were to return to the workplace.

Subsequently, the union appealed to the Court of Appeal in respect of the decision of the lower court, and a majority of the Court held that the lower court judge erred in holding that the adjudicator’s decision was reasonable and returned the matter to the adjudicator for further consideration.

According to a review article by legal experts published in mondaq, the level and standard of individualized assessment of accommodation which must be met in order to meet the high threshold for undue hardship remains unclear. Unfortunately, current medical science and drug testing technology is not sophisticated enough to determine impairment in many workplace scenarios. Therefore, employers must be diligent when assessing whether or not undue hardship has been met.

It is the employer’s obligation to provide safe work environments. In addition, when the duty to provide safe work and the duty to accommodate disabled employees come into conflict, employers must know their rights and the limits to those rights. Therefore, employers overseeing safety-sensitive workplaces could benefit from further clarification of the limits of accommodation for employees who use medical cannabis to avoid compromising safety due to possible impairment from medical cannabis.