Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on June 17, 2021 within the category "Medical-legal issues". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
An employer rejected the conclusion of an independent medical evaluation and refused to allow the grievor to return to his safety-sensitive position while taking medical marijuana. The union grieved the refusal, claiming the IME was intended to determine the issue. The arbitrator found that the employer was justified in not returning the grievor to his position while on medical marijuana.
Teck Coal Ltd. (Elkview) v United Steelworkers, Local 9346, 2021 CanLII 43178 (BC LA), (April 23, 2021) (Arbitrator Christopher Sullivan)
The grievor began work at Teck Coal's Elkview operation in July 2004.
During his time at the Elkview Mine, the grievor worked as a labourer, a haul truck driver and a serviceperson. Ultimately, after having completed his apprenticeship training, the grievor became a certified warehouseperson.
Prior to commencing employment at Elkview, the grievor was involved in a motor vehicle accident, suffering a back injury.
He developed chronic back pain and was prescribed pain-relieving medications. From 2012 to 2015, the grievor was prescribed Oxycodone, which caused him to experience side-effects that had a significant negative impact on his personal and social life.
In 2015, the grievor's physician wrote a medical note advising that he had examined the grievor and would prefer to switch him to medical marijuana.
The physician indicated his expectation that the grievor would be able to function in a normal capacity, and work in a safety-sensitive area without concern. However, the employer refused to allow the grievor to return to work while on medical marijuana because the position of warehouseperson was designated as a safety-sensitive position.
The employer and the union agreed to postpone any grievance, pending the results of an independent medical assessment (IME) of the grievor and his marijuana use.
The employer selected the IME specialist and provided a letter outlining specific questions regarding the grievor’s situation. It pointed out that the workplace is safety-sensitive.
The IME specialist provided a report indicating that he had no concerns about the grievor's ability to work in his warehouseperson position while taking medical marijuana. The report was primarily based on information provided by the grievor and did not substantially answer the questions posed by the employer.
The employer provided the IME report to the union. The employer also provided the union with a report from a different specialist in support of its decision to repudiate the IME report.
Based on the second report, it disallowed the grievor from returning to the workplace while taking medical marijuana.
The grievor then stopped taking medical marijuana, reverted to using opioids for medication, and was allowed to return to work.
The union filed its grievance on behalf of the grievor in December 2015, alleging discriminatory conduct.
In 2016, the grievor was re-authorized to take medical marijuana and the employer has since refused to allow him to return to his warehouseperson position.
At arbitration, the employer argued that employees cannot be intoxicated in its workplace while employed in a safety-sensitive position. While the employer was willing to consider an IME report of the grievor’s specific circumstances, the employer ultimately had deep concerns about the IME’s conclusions and sought what it considered to be an alternate, more reliable, report.
In turn, the union submitted that it and the employer had agreed that the requested IME was to resolve the conflict, and that their agreement should be binding. The union further submitted that employers may not set a standard that requires perfection, but, rather, they must accept a reasonable amount of risk when balanced against human rights considerations.
In assessing the grievance, Arbitrator Christopher Sullivan addresses two primary questions in his analysis:
- Was the agreement to seek an IME a binding agreement between the employer and the union which was meant to resolve the issue?
- Was it reasonable for the employer to reject the IME?
In response to the first question, the arbitrator effectively concluded that there was no binding agreement that the IME would be the ultimate determiner of the conflict. He acknowledged that, while the parties intended for the IME to resolve the conflict, the answers to the employer’s questions were never provided. In the absence of these answers, there was no agreement that the IME specialist would be the final decision maker. Any such intentions would have needed to be clearer:
The parties agreed the Grievor would undergo an IME to answer certain questions in relation to the matter of him being able to work in his Warehouse position. This was a significant agreement involving the Grievor consenting to an invasive personal inquiry. Nonetheless, there was no expression of an intention that Dr. Irvine would essentially be the final arbiter of the situation. If there was such an intention, the Employer's correspondence to Dr. Irvine, and specifically the actual questions asked to him, would likely have been worded in a way that indicated as much. However, rather than asking general questions as to Dr. Irvine's general views on the Grievor's fitness, the Employer posed a few pointed questions to elicit information related to the matter of impairment, such as use pattern and monitoring. While it may have been anticipated Dr. Irvine's responses would resolve the matter, answers to the questions posed were not received. [Emphasis added]
In response to the second question, the arbitrator highlighted the importance of ensuring workplace safety:
From either a labour relations or a human rights analysis, the Employer is not required to maintain someone in a position where it is not safe to do so and this is the central issue arising from the Union's grievance. [Emphasis added]
Arbitrator Sullivan then proceeded to clarify the statutory mandate which requires employers to ensure that individuals are not impaired at work.
With this in mind, he concluded that the IME did not provide adequate justification to require or allow the grievor to return to a safety-sensitive position while taking medical marijuana:
In the absence of being provided with any substantive support for Dr. Irvine's assessment, it was reasonable for the Employer to reject such. The evidence in this case supports a conclusion that ingesting THC causes impairment in the form of diminished mental alertness and lessened ability to assess and respond. The fact the Grievor's prescribed cannabis was "low" THC, and "mixed with CBD", which on the evidence could lessen the impairing effects, does not negate there likely being a period of some degree of acute intoxication causing impairment for a period of time subsequent to vaped ingestion. Dr. Irvine noted in his report that this risk was mitigated by the fact there was always help available to the Grievor at the warehouse, and he had confidence the Grievor would request such if needed. There is no basis upon which to accept Dr. Irvine's confidence on this matter as it appears to be based on no more than a "gut feeling" grounded in his impressions of the Grievor and what the Grievor was telling him about his situation. [Emphasis added]
Consequently, the grievance was dismissed.
Implications for Employers
This case provides two lessons for employers in a disability accommodation situation. First, when agreeing to an IME in relation to a potential grievance, employers must be clear as to whether an IME will be determinative in the matter.
Second, as noted by the arbitrator, employers are obligated to ensure safety is not compromised in the workplace. Therefore, even when presented with an IME that recommends reinstatement, employers are still ultimately responsible for considering the safety implications of an employee’s medical marijuana use and to make decisions accordingly. IMEs can be challenged.
Implications for Unions
Similarly, unions should ensure that agreements for an IME are clear on the role that an IME will play in resolving a potential grievance. In cases where an IME does not recommend a return to work, unions should be vigilant to ensure the IME appropriately answers the questions asked and provides a supported conclusion instead of just a “gut feeling.” To ensure that best results from an IME, unions should work with the employer to frame the questions to be posed to the physician performing the medical review, in order to best protect the interests of the employee.