Two recent cases out of Newfoundland add additional context to the question of whether and when employees may medicate with medicinal marijuana in the workplace. Both of the decisions involved different employees with the same employer and represented by the same union: International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers Association Inc. (Uprichard) and (Tizzard) [IBEW (Uprichard) and IBEW (Tizzard), respectively]. Both of the cases involved employees using medical marijuana while employed in safety sensitive environments. The employees both had prescriptions for medical marijuana and faced restrictions on their ability to work for their employers as a result. The arbitrators both attempted to carve out new boundaries between an employee’s right to use medical marijuana and an employer’s obligation to maintain a safe workplace in a safety-sensitive environment.
In IBEW (Uprichard) the employee’s failure to disclose his use of medical marijuana and his deliberate efforts to conceal that fact resulted in his dismissal. In IBEW (Tizzard) the employee disclosed his use of marijuana and as a result was unable to obtain two different positions he’d applied for internally with his employer. In both of the cases, the arbitrator found that the employee’s actions warranted some discipline by the employer.
In IBEW (Uprichard), the employee was returned to work after two years without any backpay. The arbitrator found that his misconduct warranted discipline of some sort but that termination was too severe a penalty. In IBEW (Tizzard), the arbitrator found that the employer’s decision not to place the employee in a new role with the company was justified. In both cases, the arbitrators held that the workplaces were safety-sensitive environments necessitating greater restrictions on intoxicating substances than would be necessary in less safety-sensitive roles. The decisions confirmed the fact that an employee’s legal right to use medical marijuana does not automatically confer the right to use the substance while working in a safety-sensitive environment. The decisions did, however, implicitly leave open the possibility that in less safety-sensitive workplaces, use during work hours may be permissible.
The arbitrator in IBEW (Uprichard) declined to find that the employer had failed to accommodate the employee because the employer was never informed that the employee believed he had a disability nor were they informed about his resulting medical marijuana use prior to dismissing him. While the union asserted that disclosing marijuana use would have barred the employee from receiving a position with the employer, this was not seen as justification for withholding the information.
In IBEW (Uprichard), the arbitrator noted that it is difficult to conclude that an employer has failed to accommodate a request that was never made. Furthermore, the arbitrator stated that there was insufficient evidence to even identify the grievor as disabled. In any case, the arbitrator found that unrestricted and unsupervised medical marijuana use in the workplace would have imposed undue hardship upon the respondent due to the safety-sensitive nature of the work. The arbitrator in IBEW (Tizzard) noted that the employer’s zero-tolerance policy was not, on its face, discriminatory because it was legitimately created to ensure health and safety at work and it provided some flexibility for accommodation.
In IBEW (Tizzard), the arbitrator found that the employer was justified in denying a new, safety-sensitive position to the employee on the basis that he used medical marijuana each evening after work, despite never using it before or during work hours. The arbitrator held that the employer could not be reasonably certain the employee was not intoxicated during working hours because residual cannabinoid intoxication is possible up to twenty-four hours after ingestion. The arbitrator found that random drug testing would be insufficient to alleviate this concern, as available testing for marijuana cannot sufficiently determine impairment, it can only assess cannabinoid concentrations in the user’s blood. Accommodating the employee’s marijuana use would therefore constitute undue hardship for the employer in the circumstances.
Takeaway
These cases clearly recognize that there may be circumstances when employees have the right to use medical marijuana at work, but also stipulate that there will be reasonable limits to this form of accommodation. In both cases, allowing for the medication to be used at work would have amounted to undue hardship, however, in less safety-sensitive environments, accommodating an employee’s marijuana use may not reach that threshold given the arbitrators acknowledgement that accommodations must be crafted on a case-by-case basis.
Employers should take heed of the fact that the employers’ success in these cases was due in large measure to the comprehensive drug and alcohol policy of the company that clearly set out expectations respecting intoxicating substances. Without this policy, the employer would have been much more limited in its ability to discipline the employees for their marijuana use.
Employers should also carefully consider the relevance of the decision in IBEW (Tizzard) to their workplaces. That decision’s thorough analysis of the medical impacts of the use of marijuana resulted in a finding that even marijuana use after work can create sufficient risk (particularly given the absence of accurate testing for marijuana impairment) that an employer is justified in not permitting an employee to work in a safety-sensitive position. While it is as yet unclear whether the HRTO and Ontario’s courts and arbitrators will follow that analysis, the well thought-out nature of the arbitrator’s decision is likely to prove persuasive to other arbitrators.
While many employers are feeling overwhelmed and confused about how to manage marijuana use, particularly with recreational marijuana becoming legal in fall 2018, these two decisions should provide some cautious relief from those concerns by clearly setting parameters for employee use of medical marijuana.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.
