Scott Tizzard of Torbay disclosed his health issues and treatment when he applied for a job with a Muskrat Falls contractor
ST. JOHN’S, N.L. — The province’s Court of Appeal has voted 2-1 in favour of sending back to arbitration the case of a man who was denied Muskrat Falls project work four years ago due to his use of medical marijuana.
Scott Tizzard’s grievance was dismissed by an arbitrator in 2018, after which his union, the International Brotherhood of Electrical Workers (IBEW) Local 1620, asked for a judicial review. That application was also dismissed.
The union appealed that dismissal last December.
Appeal Justices Gale Welsh and Gillian Butler agreed that Tizzard’s potential employers had not fulfilled their duties to help accommodate him, while Justice Lois Hoegg disagreed, adding Tizzard is free to choose the best medication for his health conditions, but it can’t trump safety on the job.
The IBEW local had filed the original grievance on Tizzard’s behalf, saying he had suffered discrimination in November 2016 when he was denied work for using his doctor-prescribed medical marijuana for relief of pain from Crohn’s disease and osteoarthritis. Court documents indicated Tizzard had completed multiple ineffective trials of pain medication before his doctor referred him to a cannabis clinic and he was prescribed medical marijuana.
Tizzard, who has a 30-year career in the construction and trades industry, disclosed his health issues and treatment when he applied for a job with contractor Valard Construction. He was denied employment, despite having confirmation from his doctor that he was fit for work and having been able to work at his previous job safely. His previous supervisor had not had a problem with his medication and, in fact, Tizzard was recognized with two safety awards.
Arbitrator John Roil dismissed the grievance, concluding Tizzard’s medical cannabis use “created a risk of (his) impairment on the job site. The employer was unable to readily measure impairment from cannabis, based on currently available technology and resources.”
Roil determined the inability to manage the risk constituted undue hardship for the employer, and a Newfoundland and Labrador Supreme Court judge later ruled Roil’s decision was reasonable.
Appeals judges Welsh, Butler and Hoegg released their decision last week.
Welsh said Roil had not addressed the employer’s responsibility to prove that it would suffer undue hardship in accommodating Tizzard by assessing his ability to perform the job safely. She determined the case must go back to arbitration to determine whether there’s a way to assess Tizzard without undue employer hardship.
Butler spoke of Roil’s focus on how to measure possible impairment from the medication instead of on Tizzard’s ability to perform the job while taking the prescribed drug.
“Impairment” is a relative term, Butler said.
“The reality for all disabled persons is that their ability is impaired in some manner,” she wrote. “When an arbitrary standard is relied upon by an employer, workplace disability discrimination principles establish that individual assessment is a reasonable alternative to a discriminatory rule.”
Medication side effects are part of that same reality, she wrote, noting Nalcor’s policy includes screening tolerances in the case of more common drugs like Tylenol and Ativan. Requiring a person to establish a reliable means of measuring side effects from their medication shifts the onus from the employer to the grievor, she said, and that is an error of law.
“The discrimination in this case lies not in the refusal to give (Tizzard) the job for which he had applied,” she wrote, but the refusal to allow him to demonstrate that he could be safely accommodated.
Hoegg dissented, saying the arbitrator’s decision had been reasonable. She noted Tizzard’s prescribed THC concentration had increased over the period of the grievance and said it seemed unlikely to her that he would vape the exact amount every evening, despite his best efforts. This suggested that his level of impairment could vary from day to day, she wrote.
“I do not mean to challenge the grievor’s credibility. Rather I make the general observation that human behaviour is not an active science and that (his) impairment, or degree of impairment, if any, rests entirely in (his) hands, and the employer has no way to measure it.
“The bottom line is that if an employee’s health condition is being treated with a drug which causes mental or physical impairment which cannot be evaluated, whether it be cannabis or another drug, that employee may simply not be able to work in a safety-sensitive position.”