Medical Cannabis and Safety Sensitive Work

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Provincial and Federal Human Rights legislation requires that an employer accommodate an employee’s medical condition to the point of “undue hardship”.

With the increasing prevalence of medically prescribed cannabis, employers are understandably concerned with the prospect of impairment at work, particularly with employees in safety sensitive roles.

In a recent decision of the Supreme Court of Newfoundland and Labrador [1] (the “Churchill” case), the Court upheld a unionized employer’s denial of employment to a labourer working on the construction of electrical towers.

The labourer suffered from pain due to osteoarthritis and Crohn’s disease for which he was prescribed medical cannabis, which prescription he reported to the employer. The employee regularly ingested 1.5 grams of dry cannabis each evening following work hours.

In assessing the risk of impairment on the job and the employer’s duty to accommodate, there were conflicting medical opinions, including one indicating that it could take up to 24 hours after use before the employee would be totally free of impairment. 

The Court found that the “possibility” of impairment, based on the medical evidence, met the threshold of undue hardship in the circumstances.  A significant consideration in coming to this conclusion was that the employer was unable to readily measure impairment from cannabis based on currently available technology and  resources, and that consequently, the inability to measure and manage that risk of harm constituted undue hardship for the employer. 

It is likely that employers will take the position, based on cases like Churchill, that the mere possibility of impairment will constitute undue hardship and therefore negate the duty to accommodate medically prescribed cannabis at work, at least in the case of safety sensitive work. 

Employers with employees prescribed to use medical cannabis will certainly look to this decision and those that follow in assessing their obligation to accommodate in their particular circumstances.

Peter Straszynski is a partner and member of the firm’s Employment Law and Cannabis Law practice Groups.

[1] International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 N.L.S.C. 48, issued February 22, 2019

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