International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019, NLSC (CanLII)

In February of 2019, the International Brotherhood of Electrical Workers, Local 1620 (“Local 1620”), filed a grievance was filed on behalf of one of their members (“the Grievor”).  He was refused a job on the Lower Churchill Transmission Construction Project (“Lower Churchill”) because of his use of a medical cannabis prescription. 

The Grievor had both osteoarthritis and Crohn’s Disease.  Medical cannabis was prescribed to the Grievor after many years of conventional treatment were ineffective and often exasperated his stomach condition.  There was no dispute by either party that the Grievor’s medical condition constituted a disability under the Human Rights Act, 2010, S.N.L.  2010, c.  H-13.1.  The Arbitrator’s decision focused predominantly on whether the “employer had met its acknowledged duty to accommodate the Grievor’s disability without undue hardship.” (par.  3.)

The Grievor had applied to work on the Lower Churchill Transmission Construction Project, but when he admitted his cannabis use, was told that he would probably “fail” the drug testing requirement necessary to secure the position.  Consequently, a grievance was filed by the Local 1620 on behalf of the Grievor.  After considering the evidence of several physicians on the residual impairment of cannabis use and the testimony of safety and labour relations staff, the Arbitrator made the decision to dismiss the grievance, upholding Lower Churchill’s decision to refuse employment to the Greivor.

The Union made an application for judicial review of the Arbitrator’s decision to the Supreme Court of Newfoundland and Labrador, suggesting that the Arbitrator had made three errors in his decision:

  • In deciding that the Grievor’s impairment continued for a longer period of time that the Grievor’s physician indicated, 
  • That the Arbitrator determined that the Grievor only had a risk of impairment rather than an actual impairment which resulted in shifting the onus of proof of impairment on to the Grievor; and, 
  • That stereotypes pertaining to cannabis use were perpetuated by both the Arbitrator’s decision and the Employer’s actions.
    In evidence was a policy document that outlined the drug and alcohol standards for the Lower Churchill project.  This document declared that every position on the Lower Churchill project was a safety sensitive position, defined as:  
  • "any position in which the individual has a key and direct role in an operation where performance limitations due to substance use or incapacity due to the adverse effects of drugs or alcohol, could result in a direct and significant risk of injury as a result of an Incident or Near Miss….All Workers working on Site are considered to be in Safety Sensitive Positions."

    In paragraph 44 of the Court’s analysis, it quotes the Arbitrator’s decision at par.  181:

    The safety hazard that would be introduced into the workplace here by residual impairment arising from the Grievor's daily evening use of cannabis products could not be ameliorated by remedial or monitoring processes.  Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the Employer if it put the Grievor to work.  As previously stated, if the Employer cannot measure impairment, it cannot manage risk.

    And in paragraph 44, the Court concluded:

    I find that the Arbitrator accurately identified the issue before him in this case as a question of the Employer’s duty to accommodate use of medical cannabis by a worker in a safety sensitive position.  He found that the duty to accommodate did not extend to a requirement that the Employer accept a risk resulting from the possibility of impairment.  He concluded that the evidence of possible impairment adduced by the Employer (and not contradicted by the Grievor’s treating physician who conceded the possibility of residual impairment beyond the initial four hours from use) met its onus to demonstrate undue hardship which displaced its acknowledged duty to accommodate.

    In summary, the Court found that the Employer was unable to mitigate the safety risk associated with allowing the Grievor to work on the Lower Churchill site.  Further, all positions on the site were safety sensitive rendering the Employer unable to offer alternative positions to accommodate the Grievor.  The application was dismissed with costs.

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