October 25, 2016

Employee’s Failure to Disclose Medical Marijuana Use a Factor in Establishing Just Cause for Dismissal

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A recent labour arbitration decision out of Newfoundland and Labrador considers the obligation of employees to disclose medical marijuana use in safety-sensitive workplaces.

  

Facts

 

In International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers’ Assn. Inc. (Uprichard Grievance), [2016] NLLAA No 5, the Union grieved the dismissal of an Assembler employed by Valard Construction (“Valard”), alleging discrimination by Valard on the grounds of disability, contrary to the Newfoundland and Labrador Human Rights Act. Valard, a contractor involved in the Lower Churchill Transmission Project, hired the Grievor to work as an Assembler on the construction of the transmission line and provided on-site accommodations for the Grievor during his 21-day rotations.

 

Prior to commencing employment with Valard, the Grievor was prescribed medical marijuana to provide him relief from anxiety and chronic pain. The Grievor passed a pre-employment drug and alcohol test by abstaining from marijuana for two weeks prior to the test, but resumed his consumption of marijuana immediately after. During his pre-employment orientation, the Grievor read and signed the Valard Construction LP Health and Safety Handbook (the “Valard Handbook”), which required employees to report the use of any medication which could impair their ability to work safely. He also completed and signed a Medical Questionnaire, but deliberately left a question on taking medication that may have side effects blank. After commencing employment with Valard, the Grievor smoked marijuana at the worksite almost daily during his 21-day rotations. When he arrived at the worksite at the beginning of each rotation, the Grievor would bring his medical marijuana to his dormitory room before hiding it in a ditch adjacent to a nearby highway for the remainder of the rotation.

 

The Grievor was dismissed after Valard’s Safety Advisor, Mr. Groves (“Groves”), smelled marijuana inside a pick-up truck that the Grievor was using on site. When confronted by Groves, the Grievor denied smoking marijuana at work, but acknowledged that he would not pass a drug test. Groves later learned that the Grievor had a prescription for medical marijuana and used marijuana during his work rotations. In the Grievor's termination letter, Valard indicated its basis for termination was the Grievor’s violation of the Nalcor Energy Lower Churchill Project Drug and Alcohol Standard (the “LCP Standard”), including his failure to disclose his medical marijuana prescription and his possession and use of marijuana at the worksite.

 

The Lower Churchill Project Handbook (“LCP Handbook”), which applied to all employees working on the Lower Churchill Transmission Project, set out a number of safety absolutes, violation of which would lead to denial or revocation of site access and termination of employment unless exceptional mitigating circumstances were established. One such safety absolute was non-compliance with the LCP Standard.

 

Decision

 

Arbitrator James Oakley found that Valard had just cause to terminate the Grievor's employment. The LCP Standard required that Valard employees comply with the LCP Standard, the Canadian Model for Providing a Safe Workplace, Alcohol and Drug Guidelines and Work Rule, Version 5.0 (the “Canadian Model”) and the Valard Handbook. Arbitrator Oakley relied on evidence regarding the potential unsafe side effects of marijuana in finding that the Grievor violated the Valard Handbook and the Canadian Model, both of which required employees to report the use of any medication that may impair their ability to work safely. Arbitrator Oakley also found that the Grievor violated the Canadian Model by possessing drugs while on company property and at a company workplace. While exceptions were set out in the Canadian Model for the possession of prescription drugs that did not adversely affect an employee’s ability to safely perform his or her duties and for employees who notified their supervisors of any potentially unsafe side effects associated with their use of prescription drugs, neither exception applied to the Grievor. Arbitrator Oakley further found that by violating the LCP Standard, the Canadian Model and the Valard Handbook, the Grievor violated a safety absolute for the project. As the Grievor had not established any exceptional mitigating circumstances, Arbitrator Oakley held that Valard had just cause to terminate the Grievor’s employment. 

 

Arbitrator Oakley then considered whether the Grievor had been discriminated against on the grounds of disability, noting that Valard’s failure to allow the Grievor to work due to his use of medical marijuana could be considered prima facie discrimination contrary to section 14(1) of the Human Rights Act. Arbitrator Oakley continued on to find that Valard’s implementation of the LCP Standard, the Canadian Model and the Valard Handbook satisfied the three-part Meiorin test to establish a good faith occupational qualification within the meaning of section 14(2) of the Human Rights Act. As such, Arbitrator Oakley held that the discipline imposed by Valard as a result of the Grievor’s violation of the LCP Standard did not constitute a violation of the Human Rights Act.

 

Lesson For Employers

 

An employee’s failure to disclose a medical marijuana prescription could constitute just cause for dismissal, particularly if he or she is employed in a safety-sensitive workplace and fails to comply with a drug and alcohol policy that requires employees to disclose their use of any medications with potentially unsafe side effects. While employers have legal obligations under human rights legislation to accommodate medical marijuana users, refusing to allow an employee to work due to medical marijuana use may not constitute discrimination on the grounds of disability if the employer’s drug and alcohol policy is found to comprise a good faith occupational qualification.

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Employee’s Failure to Disclose Medical Marijuana Use a Factor in Establishing Just Cause for Dismissal

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