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DISCRIMINATION - Context - Workplace discrimination - Drug and alcohol policies

Monday, July 06, 2020 @ 9:31 AM  

Appeal by the union from a decision dismissing its application for judicial review of an arbitrator’s decision. The appellant filed a grievance on behalf of a general labourer who was refused employment at a construction site when he failed to pass a drug test. The grievor disclosed that he used medically authorized cannabis to manage chronic pain. The arbitrator accepted that the employment at issue involved safety-sensitive positions and that there was no alternate medical intervention available to the grievor to address his disability for purposes of employment with the employer. The arbitrator concluded that the grievor’s use of medically authorized cannabis created a risk of impairment on the jobsite. He concluded that, while the grievor was discriminated against, the employer was not able to accommodate the grievor without undue hardship because the employer was unable to readily measure impairment from cannabis and manage risk of harm on the jobsite. 

HELD: Appeal allowed. The matter was remitted for determination of whether there was another means of individual assessment of the grievor’s ability to perform the job safely which would provide an option for accommodation without undue hardship. The applications judge did not err in concluding that a standard of review of reasonableness applied to a review of the arbitrator’s decision. The duty to accommodate required accommodation to the point that the employer was able to demonstrate that it could not have done anything else reasonable or practical to avoid the negative impact on the individual. While it was reasonable for the arbitrator to find that no reliable scientific or medical test or resource was available for determining impairment in the circumstances, the absence of a test or standard did not lead inexorably to the conclusion that there was no means by which to determine whether an employee, by reason of ingesting cannabis, would be incapable of performing a specific job, including a safety-sensitive job. The onus was on the employer to establish that some means of individual testing of the grievor to assess his ability to perform the job was not an alternative. Given the individual nature of the possible accommodation, the analysis required an assessment regarding what alternatives were investigated by the employer that might have allowed for individual testing of the grievor. The employer failed to address these questions or provide evidence necessary to discharge the onus of demonstrating that accommodation of the grievor on an individual basis would result in undue hardship.

International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Assn. Inc., [2020] N.J. No. 111, Newfoundland and Labrador Court of Appeal, B.G. Welsh, L.R. Hoegg and G.D. Butler JJ.A., June 4, 2020. Digest No. TLD-July62020001