{"id":19308,"date":"2020-08-19T10:00:36","date_gmt":"2020-08-19T14:00:36","guid":{"rendered":"https:\/\/www.benefitscanada.com\/news\/nl-case-involving-employer-duty-to-accommodate-medical-cannabis-sent-back-to-arbitration-149003"},"modified":"2020-08-19T10:00:36","modified_gmt":"2020-08-19T14:00:36","slug":"nl-case-involving-employer-duty-to-accommodate-medical-cannabis-sent-back-to-arbitration","status":"publish","type":"post","link":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/2020\/08\/19\/nl-case-involving-employer-duty-to-accommodate-medical-cannabis-sent-back-to-arbitration\/","title":{"rendered":"NL case involving employer duty to accommodate medical cannabis sent back to arbitration"},"content":{"rendered":"
\n
\"123RF.com\/Alexander <\/div>\n<\/p><\/div>\n

Kelsey Rolfe<\/span> | August 19, 2020 <\/p>\n

The Newfoundland and Labrador Court of Appeal has found a labour arbitrator failed to properly analyze an employer\u2019s efforts to accommodate an employee taking medical cannabis for his chronic pain.<\/p>\n

The International Brotherhood of Electrical Workers initially filed a grievance on behalf of one of its members, who was refused employment by Valard Construction for failing to pass a drug test after disclosing his use of medical cannabis. In arbitration, the company asserted that, while denying employment on the grounds of the employee\u2019s medical cannabis use constituted a case of discrimination prohibited by the Human Rights Act, it was done so due to \u201cgood faith occupational qualification\u201d or the ability to work unimpaired.<\/p>\n

Read: Rethinking long-term disability with cannabis-assisted return to work<\/a><\/strong><\/p>\n

While the union noted there were no other positions onsite the employee could have filled, it argued the company still failed to accommodate his disability.<\/p>\n

The labour arbitrator denied the grievance, noting the employee would have been in a safety-sensitive position and there was no alternate medicine that could manage his condition. As well, Valard would have no way to assess the employee\u2019s potential impairment on the job site given the lack of established scientific or medical standard for cannabis impairment, the arbitrator wrote, and \u201cthe inability to measure and manage that risk of harm constitutes undue hardship for the employer.\u201d<\/p>\n

The Newfoundland Supreme Court of Appeal concluded the arbitrator\u2019s decision had been reasonable in a 2019 judicial review of the case. However, the court of appeal found the judge had erred in his judgment because the arbitrator had completed only a partial analysis of whether the employer\u2019s attempts to accommodate the employee\u2019s disability would have constituted undue hardship. The court chose to remit the case back to the arbitrator for further analysis.<\/p>\n

Read: Ontario court grants appeal for employee in long-term disability case<\/a><\/strong><\/p>\n

\u201cIn order to discharge the onus of establishing that to accommodate the grievor would amount to undue hardship, it was necessary for the employer to demonstrate that to assess the grievor for impairment by some other means on a daily or periodic basis would result in undue hardship,\u201d wrote Justice B. Gale Welsh. \u201cThe absence of a test or standard [for cannabis impairment] does not lead inexorably to the conclusion that there is no means by which to determine whether an employee, by reason of ingesting cannabis, would be incapable of performing a specific job, including a safety-sensitive job.\u201d<\/p>\n

Without that part of the analysis, he wrote, it wouldn\u2019t be possible to determine whether the employee should have been hired.<\/p>\n

According to Rebecca Wise, an employment lawyer at Torys LLP, it\u2019s important to note what the court\u2019s decision didn\u2019t say. \u201cThis decision is not saying that this particular grievor ought to have been hired by the employer or that there was a means of accommodating the grievor to the point of undue hardship,\u201d she wrote in an email to Benefits Canada<\/em>. \u201cThe issue was that the employer failed to provide evidence to demonstrate that the accommodation on an individual basis would result in undue hardship.<\/p>\n

Read: A look at medical cannabis coverage\u2019s growing pains<\/a><\/strong><\/p>\n

\u201c. . . I think that is an important distinction. When the matter eventually goes back to the arbitrator, it is entirely possible the employer will be able to prove that there are no other means of accommodating the grievor without undue hardship.\u201d<\/p>\n

Accommodating an employee\u2019s disability, whether in a safety-sensitive industry or not, requires an individualized assessment rather than a one-size-fits-all approach and will depend on the disability itself, the employee\u2019s position and the type of accommodation they request, noted Wise.<\/p>\n

\u201cSimilarly, whether or not accommodation rises to the level of undue hardship will always depend on, among other things, the type of accommodation, the nature of the work, the financial circumstances of the employer and other factors.\u201d <\/p>\n

However, she added, the Canada Labour Code stipulates only three factors relevant to determining undue hardship: cost, any outside sources of funding and health and safety requirements.<\/p>\n

In a concurring judgment, Justice Gillian Butler said the arbitrator\u2019s analysis that the duty to accommodate didn\u2019t extend to a requirement for Valard to accept a risk resulting from the possibility of impairment was \u201ccontrary to well-established workplace disability discrimination principles because the arbitrator and applications judge relied upon \u2018potential risk\u2019 as an independent justification for discrimination.\u201d<\/p>\n

Read: A roundup of benefits, HR and legal considerations around legalized marijuana<\/a><\/strong><\/p>\n

In a dissenting opinion, Justice Lois Hoegg disagreed with her colleagues\u2019 assessment that Valard didn\u2019t demonstrate that accommodation couldn\u2019t be made or that the arbitrator made a decision without that information. She also disputed the argument that the employee wasn\u2019t individually assessed, given his condition, prescription and how he ingested cannabis informed the medical evidence and the arbitrator\u2019s reasoning. \u201cThe grievor\u2019s possible impairment resulting from his ingesting cannabis does not lend itself to accommodation in the same way a visual or other physical impairment would,\u201d she wrote.<\/p>\n

She also noted the union\u2019s acknowledgment that there were no other onsite positions available that weren\u2019t safety sensitive.<\/p>\n

\u201cThe practical effect of my colleagues\u2019 reasoning is that the employer should give the grievor the chance to work on the site to see if he can perform the job safely. This is a hit or miss proposition . . . . This is an unfortunate situation for the grievor, who is fully entitled to choose the medication and treatment for his condition. However, his chosen medical treatment cannot be permitted to trump the safety of other workers, the project\u2019s success or the grievor himself.\u201d<\/p>\n

Read: What are the top chronic diseases in the workplace?<\/a><\/strong><\/p>\n

Read the full article at BenefitsCanada.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Kelsey Rolfe | August 19, 2020 The Newfoundland and Labrador Court of Appeal has found a labour arbitrator failed to properly analyze an employer\u2019s efforts to accommodate an employee taking medical cannabis for his chronic pain. The International Brotherhood...<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[],"tags":[],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/posts\/19308"}],"collection":[{"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/comments?post=19308"}],"version-history":[{"count":0,"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/posts\/19308\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/media?parent=19308"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/categories?post=19308"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.lifeinsurance-orleans.ca\/index.php\/wp-json\/wp\/v2\/tags?post=19308"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}