"Reasonable Accommodation" for Marijuana Use - Part one: O Canada - Appears to have Gotten it Right

A hat tip to Bennet Jones, LLP for its March 6, 2019, blog post  entitled, “Inability to measure and mitigate impairment from medical cannabis means employers can avoid accommodation requests from employees.”  The post discussed a decision from the Supreme Court of Newfoundland and Labrador, affirming a decision of a labor arbitrator in IBEW, Local 1620 v Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (2/22/2019). I know nothing about Canadian law -- especially Canadian labor law.  Reading the court’s opinion leaves no doubt that Canadian law regarding judicial review of arbitration decisions is much different and less deferential than the “federal common labor law” in the United States.   

It was essentially undisputed that grievant (“grievor” in Canada) employee had a “disability” (under Canadian law) and that his medical condition was such that cannabis was properly prescribed and used for its treatment.  It was apparently not disputed that the employee disclosed his use of medical cannabis when he applied for a number of different jobs, all of which involved him working in “safety-sensitive work environments.”  By virtue of his seniority and the provisions of the collective bargaining agreement(s), the employee would have been entitled to the jobs he sought.  The employer’s reason for not giving him the jobs was its concern --  engendered by the lawful use of medical cannabis  -- about the potential for impairment while performing safety-sensitive duties.  

From the opinion, I infer that Canadian law is that when an employer has a reasonable and good faith policy which causes an adverse effect to an individual due to a disability, the employer is required to make an accommodation unless the employer can demonstrate undue hardship. (My inference regarding Canadian law leads to my conclusion that it is not unlike the requirements under the Americans with Disabilities Act for a “reasonable accommodation” being made to permit an otherwise qualified person with a disability to perform the essential functions of the job.)

The Canadian court noted that the arbitrator, in a 65-page written opinion, had crafted a standard for a “safety sensitive position” as a position that requires “physical dexterity and mental focus, a deficit in which, due to the nature of the work, equipment and worksite, created hazards” for the individual employee or other workers.  The Canadian court noted that Nalcor Energy – Google tells me it is the energy corporation owned by the Newfoundland and Labrador government -- has, in its Drug and Alcohol Standard,  its own definition of a “Safety Sensitive Position:” 

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….

The Canadian court agreed with the arbitrator that the positions sought by the employee were indeed “safety sensitive.”

The court’s opinion noted that the arbitrator heard competing testimony from four experts – two general medical practitioners, a pharmacologist / toxicologist and a pain management specialist – on the effects of cannabis and how quickly any impairment might dissipate.  The Canadian reviewing court accepted, based on the fact that there was expert testimony, that the arbitrator was reasonable in concluding:

• medical cannabis can impair the ability of a worker to function safely in a safety-sensitive environment;
• the impairment can last up to 24 hours;
• the employee who is using medical cannabis pursuant to a medical directive may not him or herself be able to accurately determine whether or not they are or remain impaired; and
• there are no available testing methods to accurately determine impairment from cannabis use in the workplace.

This multi-part conclusion is not a legal determination of a court. Rather, it is a determination of a Canadian labor grievance arbitrator – a determination which the reviewing court noted was a series of conclusions supported by evidence and “a clear line of analysis.” The Canadian reviewing court determined that there was nothing which would lead one to conclude that the arbitrator’s determination was based on “stigma or stereotype attaching to cannabis users.” (Shifting to American jurisprudence, a reviewing court determined that there was substantial evidence to support the action and it was not arbitrary or capricious.)

In the United States, virtually every employer is subject to some federal or state occupational safety and health “general duty clause.”  Here the arbitrator had apparently un-contradicted evidence that the lawful use of medical cannabis can result in some functional impairment of the ability to work safely for up to 24 hours after use.  The general policy of the employer was that a person could not work in a “safety sensitive position” – defined as a position where the employee had performance responsibilities such that there was a possibility of a direct and significant risk of injury to oneself or to others if one was impaired – if one’s faculties were impaired. 

The arbitrator in effect concluded that because there was no available testing method to accurately determine the level of impairment caused by lawful cannabis use at any point in time, there was no effective reasonable accommodation that would permit a legitimate user of medical cannabis to work without constituting an “undue hardship” – a direct and significant risk of injury to the worker or to co-workers.

42 USC § 12113 (a) creates an affirmative defense to a complaint of employment discrimination for a “qualification standard” which is “shown to be job related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation."  42 USC § 12113 (b) and a unanimous United States Supreme Court in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002) provides that a qualification may include a “requirement that an individual shall not pose a direct threat to the health or safety of [the individual or] other individuals in the workplace.”  In a regulation found at 29 CFR § 1630.2(r), the EEOC defines the term “direct Threat” as a “significant risk of substantial harm.” 

How does the determination of the Canadian arbitrator under Canadian law fit within an employer’s obligations under American “disability discrimination” law, including the laws of states “legalizing” various “marijuana” usages?  This question will be explored in “part two.”