Medical cannabis and the duty to accomodate

Oct 2, 2018

The upcoming legalization of cannabis has put recreational use in the public eye, however many employers are still struggling to properly address and manage medical use by their employees. The requirement that employers have a duty to accommodate is what causes many employers to question their rights when dealing with this issue.

First let us take a look what the “duty to accommodate” actually is, according to the Canadian human rights commission:

“Employers and service providers have an obligation to adjust rules, policies or practices to enable you to participate fully. It applies to needs that are related to the grounds of discrimination. This is called the duty to accommodate.”

Examples are given on the website regarding such things as making accommodations for those who are visually impaired (by supplying a special screen or software to allow them to use the computer) or those who are in wheelchairs having access to ramps to make their way around a business. The examples also include such things as allowing an employee time to attend required medical appointments.

On the other side of the duty to accommodate, which the employer owes their employee, is the limits to this duty, which falls under ‘undue hardship’. Undue hardship is the term used to encompass the reality that there is a limit to how far an employer can/must go to accommodate an employee’s needs. If the cost of the accommodation is too much for the employer, or if it would create health or safety risks within the workplace to try and accommodate the employee, this is called undue hardship. An employer is only expected to made accommodations up until the point of undue hardship.

There have been two cases in recent history which help inform us regarding the requirements and limitations of both of these parameters. The two arbitration decisions which speak to this are: Re IBEW, Local 1620 and Lower Churchill Transmission Construction Employers Assn. Inc. (Uprichard) (2017), 281 LAC (4th) 246 (“Lower Churchill 1”) and Re Lower Churchill Transmission Construction Employers Assn. Inc. and IBEW, Local 1620 (Tizzard) 2018 Carswell Nfld 198 (“Lower Churchill 2”).

The Lower Churchill 1 case was with regard to a short service employer who was a lift operator and drove a truck working as an assembler on a transmission line. In this role the grievor was required to be on site for weeks at a time. The grievor was dismissed after a safety advisor smelled cannabis within his truck. The grievor was using cannabis with a medical authorization for chronic back pain and anxiety, but only disclosed this to the employer after the safety advisor noticed the smell.

After dismissal the union brought forward a grievance for unjust termination, but the arbitrator held that there had been just cause for the termination. The decision was brought to judicial review by the union, and was sent back to arbitration for further discussion as to whether there could be some amount of accommodation and perhaps a less severe penalty. The arbitrator reconsidered the grievance and ruled that the grievor be reinstated conditionally, however there were no terms of accommodation stated. The arbitrator made it clear that the the duty to accommodate would only be engaged where a disability had been established, and an authorization for cannabis alone does not oblige the employer to accommodate.

The Lower Churchill 2 case involved the same company but a different grievor and arbitrator. This was regarding a a pre-employment test where it was found that the grievor was a medicinal cannabis user due to osteoarthritis and Crohn’s disease. Due to the safety sensitive nature of the job the employer informed the grievor that he was not being considered for employment. The union grieved the employer’s decision. The arbitrator found that the need for the employee to be able to work in a safety sensitive position was a bona fide occupational requirement and used the Meiorin test to determine whether undue hardship was being established. The two questions which were central to his deliberation were:

  1. What is a safe interval of time between cannabis use and performance of safety sensitive duties?
  2. What ability do employers have to test for impairment caused by cannabis?

It was found by the arbitrator that there is no scientific consensus for question number one, as well as noting that according to Health Canada’s guidelines cannabis-induced impairment can last up to 24 hours. As well, pertaining to the second question, the arbitrator concluded that there is no current testing method which can properly determine whether a subject is impaired at any given time, which means that there were not testing methods which would be helpful to monitor this.

Therefore the arbitrator concluded that there was no way for the employer to monitor the employees impairment to manage the potential safety hazard, and therefore the employer would not be able to manage the risk of impairment on the job site. Due to all of these conclusions the arbitrator ruled that the grievor’s medicinal cannabis use, for this case, would constitute an undue hardship on the employer, and the grievance was denied.

The key takeaways from these two cases according to Baker McKenzie, Canadian Labour and Employment Law, are the following:

  • “while employers continue to owe a duty of accommodation to employees with recognized disabilities, this duty is not engaged simply because an employee holds a prescription for cannabis; and
  • the potential for several hours of residual impairment, and the current limitations on testing for present impairment resulting from cannabis, present a legitimate safety risk which may amount to undue hardship for employers in a safety sensitive environment.”