A very interesting arbitration decision was issued Monday of this week in Eastern Canada. As this decision was just issued to the parties Monday, we do not have nor have we reviewed the full arbitration decision. However, from the linked article, it would appear that evidence in this arbitration satisfied the arbitrator that, despite the employee's family physician's evidence that impairment for his medical cannabis dosage and timing (limited amount only at night), was likely only to last 4 hours and not interfere with safety sensitive work the next day; employer evidence of expert medical opinion that cannabis impairment could last up to 24 hours, combined with evidence that the current testing science could not reliably measure cannabis impairment, was enough for the arbitrator to decide that placing the employee in a safety sensitive position was "undue hardship" permitting the employer to refuse the placement.
This is a fascinating twist on the lack of accurate impairment testing issue. To this point, the lack of accurate science to measure cannabis impairment has been an obstacle for employers, often preventing testing of employees within the case law to date. In this case the employer has "flipped the script", so to speak, in that the employer successfully argued that the lack of science to accurately determine impairment, caused undue hardship to a safety sensitive employer in accommodating medical cannabis users, given that they could not reliably test for impairment.
Our Employment and Labour Team will be reviewing this decision in full and will report further on this interesting development and whether this result and argument is likely to gain any traction within our Alberta system.
The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the jobsite. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.