Federal Provincial

Employers of safety-sensitive workplaces do not have a duty to accommodate medical cannabis

By Samantha Bogoroch, Student-at-Law | April 12, 2019

Under Human Rights legislation, employers have a duty to accommodate an employee’s disability, up to a point of undue hardship. This means that if an employee has a disability, such as a medical condition, and is prescribed cannabis, the employer has a legal obligation to accommodate the employee’s medical cannabis use.

Accommodation varies depending on the circumstances and it may mean allowing an employee to take periodic breaks throughout the day to consume cannabis; altering the employee’s work hours to accommodate his or her use; or changing someone’s job duties. However, in a recent decision, the Supreme Court of Newfoundland and Labrador addressed how far an employer must go to accommodate the use of medical cannabis in a safety-sensitive workplace.  

In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48, an individual was denied employment because of his use of cannabis under a medical prescription. The individual was a construction worker who worked on the construction of towers and related infrastructure for the delivery of electricity from Muskrat Falls in Labrador to the island of Newfoundland. The employee suffered from chronic pain, Crohn’s disease, and osteoarthritis. After trying various conventional treatments, all of which provided insufficient relief, he was prescribed cannabis. The dosage was 1.5 grams of cannabis each evening to be taken after work hours.

The individual was part of a union that had a collective agreement in place. The collective agreement provided for priority hiring for vacant positions to be accorded to members of the union. Despite his seniority, he was not successful in obtaining a position on the project and was told that he was not hired for a position because of his cannabis use and that no contractor on the project would employ him in a safety-sensitive position while he continued to use cannabis.

The individual filed a grievance alleging that the refusal to hire him was based on discrimination. At arbitration, there was conflicting expert evidence as to the residual impairment of cannabis and how long it takes to dissipate. Experts included a general medical practitioner, a family physician, a pharmacologist and toxicologist, a pain management specialist, a safety advisor and supervisor, and a labour relations consultant.

According to the arbitrator, the employee’s use of cannabis created a risk of the employee’s impairment on the job site and because the employer could not readily measure impairment from cannabis, the inability to measure and manage that risk constituted undue hardship.

The Supreme Court of Newfoundland and Labrador upheld the arbitrator’s decision. The employer asserted that although it had a duty to accommodate the employee’s disability, it could not accommodate this employee. Accommodating this employee would constitute undue hardship for the employer when the risk of impairment could not be alleviated by a reliable measure of impairment. In addition, no other jobs were available that were not safety sensitive. The Court held that the duty to accommodate does not extend to a requirement that an employer accepts a risk resulting from the possibility of impairment.

The duty to accommodate is assessed on a case-by-case basis and when an employer meets the undue hardship standard, that duty to accommodate is discharged. As a result of this decision, employers are not required to accept the risks of impairment (or potential impairment) from cannabis in safety-sensitive workplaces.

It remains unknown whether the employee will further appeal this decision. Until then, employers may have a valid defence for not accommodating an employee’s medical cannabis use in a safety-sensitive workplace.


Comments (3)

  1. Jules:
    Dec 29, 2018 at 12:53 AM

    Fascinating article. Very in depth. My one question is: from where would Canada import cannabis? Are there countries currently exporting cannabis legally? Uraguay seems like the most economical source, although shipping costs could be an issue.

  2. miss lena:
    Feb 24, 2019 at 01:52 PM


    All labels will need to be plain, not appealing to children, and make no health claims. For edibles, there may be no dietary claims, and for topicals, there may be no cosmetic claims. For all of the new product classes, packaging and labelling must not contain any elements that associate the product with an alcoholic beverage, alcohol, or an alcohol brand.

  3. miss lena:
    Feb 24, 2019 at 01:52 PM

    All labels will need to be plain, not appealing to children, and make no health claims. For edibles, there may be no dietary claims, and for topicals, there may be no cosmetic claims. For all of the new product classes, packaging and labelling must not contain any elements that associate the product with an alcoholic beverage, alcohol, or an alcohol brand.






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