NL holds up employer’s refusal to hire medical cannabis user

May 14, 2019

The Supreme Court of Newfoundland and Labrador recently upheld an arbitration decision to dismiss a grievance filed by a union on behalf of an employee who was not hired for a safety-sensitive construction project position because of his use of cannabis for medicinal purposes. In the judicial review of the case, International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., Arbitrator John Roil, Q.C. focused on the duty to accommodate medically prescribed cannabis to treat a disability, and concluded that the employer was unable to provide the accommodation, causing the employer undue hardship.

The employee, Scott Tizzard, had been authorized to use medical cannabis to treat pain caused by two medical conditions (Crohn’s disease and osteoarthritis), after finding other treatment methods ineffective. He applied for a position with Valard Construction LP, a contractor at the Lower Churchill Project, was hired as a labourer, and was subject to passing the requisite drug and alcohol test, according to the company regulations. Mr. Tizzard had informed his employer of his cannabis use for medicinal purposes.  He later applied for another position with Valard, but was not hired. According to the evidence presented at arbitration, the employee was “red flagged” because of his medical cannabis use, and was denied working for any contractor at the Lower Churchill Project.

The Union filed a grievance due to alleged discrimination of the employer against Mr. Tizzard due to his disability. However, Arbitrator Roil concluded that medical cannabis use creates a risk of employer impairment at work and cited lack of available technology to measure cannabis-induced impairment and manage associated risks, causing undue hardship for the employer. Therefore, the grievance filed by the Union was dismissed.

Despite the fact that disclosing medically authorized cannabis use does not automatically provide the capacity to hire or to dismiss an employee, employers throughout Canada may rely on this case when making hiring decisions regarding employees who use medically authorized cannabis. Although this case could be subject to an appeal, the decision represents a legal development for employers with employees in safety-sensitive positions.

Working while impaired is prohibited by occupational health and safety legislation, and employers are required to collect medical information, such as dosage, dosage frequency and potency of the medical cannabis used to carry out individual assessments of employee’s ability to work safely in the work environment. Confirmation of evidence that the effects of medical cannabis could last while the employee is at work may be considered as undue hardship for the employer to risk having the employee perform a safety-sensitive job function while potentially impaired.