Arbitrator rules “zero-tolerance” cannabis policy for safety-sensitive positions is discriminatory – employer must try to accommodate

Following the legalization of cannabis, many employers operating safety-sensitive workplaces have reviewed and considered their alcohol and drug policies. The recent arbitration decision in Ornge Air v Office and Professional Employees International Union (December 7, 2021) provides valuable guidance for such employers. The decision considered a “zero-tolerance” policy for cannabis use by employees in safety-sensitive positions and the application of that policy to an employee who used medically-prescribed cannabis.

The grievor was employed by ORNGE Air (“Ornge”) as an Aircraft Maintenance Engineer (“AME”) at the Timmins base from May 1, 2017. As an AME, the grievor was responsible for maintaining aircraft and ensuring that they meet all safety standards. There was no dispute that the AME position was safety-sensitive. In addition to their regularly-scheduled shift, AMEs at the Timmins base were also required to be on-call every other week, during which time an on-call AME could be required to attend the workplace and provide maintenance services on an urgent basis.

The grievor was diagnosed with an anxiety disorder in January 2018. Although he tried three different prescribed medications, each was unsuccessful and caused intolerable side effects. In April 2020 the grievor was prescribed medical cannabis to treat his anxiety disorder. In accordance with Ornge’s Drug and Alcohol Policy (the “Policy”), the grievor advised his supervisor of the prescription.

Although Ornge’s Policy prohibited employees in safety-sensitive positions from using cannabis, Ornge made significant efforts to accommodate the employee while learning more about his condition and treatment. Ornge’s efforts to accommodate the grievor included providing him with non-safety sensitive work until February 2021, during which time Ornge continued to explore what it should do about the grievor’s use of medical cannabis in light of his safety-sensitive AME position. Ornge arranged for the grievor to undergo an independent medical examination (“IME”) with a doctor considered to be an expert on the effects of cannabis. The doctor considered the grievor’s condition and treatment and concluded that, given the lingering effects of cannabis, he would not be fit for safety-sensitive duties under his current treatment plan. The doctor offered a number of conditions that would, in her view, make the grievor fit for duty, most of which limited the amount of cannabis consumed and the amount of THC in the cannabis.

Although the grievor appeared to have been willing to comply with these conditions, in February 2021 Ornge stopped scheduling the grievor for work on the basis of his non-compliance with the Policy. Ornge was particularly concerned that if the grievor was on-call, he would not have sufficient time to allow the effects of the cannabis to wear off before having to complete safety-sensitive tasks. Ornge took various efforts to mitigate the grievor’s losses, including by facilitating insurance benefits and providing non-safety sensitive part-time work at the grievor’s AME rate of pay.

The union grieved. A policy grievance alleged that Ornge’s zero-tolerance Policy for medically-prescribed cannabis was discriminatory, was an unreasonable exercise of management rights, and violated the Canadian Human Rights Act (the “CHRA”). An individual grievance on the grievor’s behalf claimed that Ornge violated the collective agreement and the CHRA by discriminating against the grievor by refusing to schedule him for work on the basis of disability.

The key issue before the Arbitrator was whether Ornge’s zero-tolerance policy prohibiting medical cannabis, and the manner in which the Policy addressed the accommodation of employees prescribed medical cannabis, was reasonable and complied with Ornge’s human rights obligations.

Arbitrator Misra agreed with Ornge that the general zero-tolerance policy for cannabis use by safety-sensitive employees was reasonable. As an air ambulance service that transports ill and injured patients, Ornge was required to ensure that highest level of safety.

However, Arbitrator Misra noted that the Policy treated safety-sensitive employees prescribed medical cannabis differently than those prescribed other medications that could also impact their fitness for duty in a safety-sensitive position. On this point she stated:

There is no evidentiary basis to support a finding that medicinal cannabis, which can only be prescribed as a treatment by a licensed and regulated health professional, should be treated differently from other medications that may impair an employee’s fitness for duty if they work in a safety sensitive job, yet the Employer has singled out these employees for different treatment.

In the Arbitrator’s view, the effect of “singling out” such employees was “to deprive them of their livelihoods simply because they were prescribed cannabis to treat their illness.” The Arbitrator went on to state that while there may be cases in which a bona fide occupational requirement (“BFOR”) would preclude the accommodation of a particular employee, “a blanket edict that if an employee can only use medical cannabis to treat their illness, they cannot do a safety sensitive job, is draconian and inflexible, and is not supported by the CHRA or the jurisprudence.”  Arbitrator Misra found that the Policy was unreasonable to the extent that it failed to treat prescribed medicinal cannabis as a “medication”.

Arbitrator Misra then assessed whether the Policy was discriminatory and therefore in breach of the collective agreement and the CHRA. She relied on the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission v. BCGSEU, 1999 (“Meiorin”) for the proposition that “a standard that does not account for individual differences cannot be upheld.”  Arbitrator Misra noted:

Furthermore, having found that Ornge’s inflexible position regarding cannabis use in a safety sensitive position is unreasonable, I also find that the Policy was drafted in a discriminatory manner in that it does not properly provide for accommodation to the point of undue hardship for those working in a safety sensitive position, who, due to their medical condition, are prescribed cannabis for medical treatment purposes.

Having found the Policy to be both unreasonable and discriminatory, Arbitrator Misra next considered whether Ornge had discriminated against the grievor contrary to the collective agreement or the CHRA, first noting that the onus was on the union to establish a prima facie case of discrimination by establishing that:

  1. the grievor has a characteristic protected from discrimination;
  2. the grievor experienced an adverse impact with respect to his employment; and
  3. the protected characteristic was a factor in the adverse impact.

Arbitrator Misra found that these elements were satisfied: the grievor had an anxiety disorder and therefore a disability; the grievor experienced both the loss of income and work; and the grievor’s disability was a factor in Ornge’s refusal to continue to employ him as an AME.

Having found a prima facie case of discrimination, the onus shifted to Ornge to prove on the balance of probabilities that its zero-tolerance standard for cannabis use was a BFOR to justify its inability to accommodate the grievor because to do so would cause it undue hardship. Arbitrator Misra applied the three-part test from Meiorin, asking whether:

  • the standard was adopted for a purpose rationally connected to the function being performed;
  • the requirement/standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that purpose; and
  • the requirement is reasonably necessary to accomplish the purpose, in the sense that the employer cannot accommodate individuals sharing the characteristics of the employee without incurring undue hardship.

While the union accepted that the first two components of the test were met, it argued that Ornge failed to meet the third part. The Arbitrator agreed. She noted that the employer’s own medical expert outlined how the grievor’s treatment plan could be modified to make the grievor fit for duty for his safety-sensitive job. That doctor’s assessment and report indicated that the zero-tolerance standard could be modified to ensure that the grievor was fit for duty without imposing undue hardship on Ornge. While the grievor was prepared to try the modifications, Ornge was not and instead simply applied its zero-tolerance Policy. The Arbitrator found that in this way Ornge failed to accommodate the grievor and that the zero-tolerance policy was not a BFOR.

The Arbitrator allowed the union’s grievances and remitted the remedial issues to the parties to resolve among themselves.

In Our View

This decision underscores the importance of flexibility in accommodating individual employees under workplace policies. Whether the workplace policy relates to the accommodation of disabilities or to drug and alcohol use, this decision makes clear that employers may be at risk where such policies are rigidly applied without consideration of the individual facts and specific circumstances of a particular employee. As cited by Arbitrator Misra, the Supreme Court of Canada provided the following guidance in Meiorin:

To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that allows for such accommodation may only be slightly different from the existing standard but it is a different standard nonetheless.

For further information please contact Steven Williams at 613-940-2737 or Lauren Jamieson at 613-563-7660 ext. 236.

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