‘Long and torturous scenario’
Court asked to review arbitration decision on case of man refused work because of medical marijuana
The Supreme Court of Newfoundland and Labrador is being asked to quash an arbitrator’s decision in the case of Scott Tizzard who was denied Muskrat Falls project-related work in late 2016 due to his medical marijuana use.
The arbitrator had dismissed Tizzard’s grievance in an April decision.
Tizzard, through his union the International Brotherhood of Electrical Workers (IBEW), Local 1620, had filed the grievance saying that he had been discriminated against in November 2016 by being denied work for using his doctor-prescribed medical marijuana for relief of ongoing health issues.
Documents show that Tizzard had followed the advice of health professionals and union representatives, and the rules as they were explained to him, when applying for a job with contractor Valard — and fully disclosed his health issues and medical marijuana use — but he was denied employment even though his doctor confirmed he was fit for work.
In his decision, arbitrator John Roil described the case as a “long and torturous scenario” with numerous missteps and unnecessary delays in which Nalcor and the Lower Churchill Transmission Employers’ Association had not yet determined how they would handle work issues involving workers such as Tizzard who use medical marijuana.
The arbitrator stated that the case “had become something of a test case.”
In dismissing the grievance, he concluded that: “The employer did not place (Tizzard) in employment at the project because of (Tizzard’s) authorized use of medical cannabis as directed by his physician,” Roil stated. “This use created a risk of (Tizzard’s) impairment on the job site. 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.”
IBEW’S application to the Supreme Court asks for an order to quash Roil’s decision and for the court to allow the grievance, or to find that the employer failed to accommodate Tizzard’s disabilities, and to compensate him for lost wages, overtime and for breaching his human rights.
Tizzard, who has worked in the construction and trades industry for 30 years, suffers from the pain and discomfort of Crohn’s disease and osteoarthritis. The court documents note that in April 2016, after multiple ineffective trials of pain medication between 2008 and 2016, Tizzard’s family doctor referred him to the Cannabinoid Medical Clinic for assessment and he was subsequently prescribed medical marijuana to take in the evenings to manage his pain.
His supervisor for the company he was working with at the time had no problem with this and Tizzard continued to work safely and without impairment, the documents state.
After that work project ended, Tizzard applied for the job with Valard and was denied employment.
The union’s court documents allege that “rather than undertaking a good faith inquiry into how it could accommodate (Tizzard’s) disability, Valard raised obstacles to (Tizzard’s) request for accommodation.”
The IBEW states that the grounds for its application to quash the arbitrator’s decision includes: that the arbitrator failed to consider whether steps were taken to accommodate Tizzard’s disabilities; erred in determining that by accommodating Tizzard’s disabilities it would constitute undue hardship for the employer; that the arbitrator exceeded his jurisdiction by incorrectly finding that a treating physician is not in a position to determine a patient’s fitness for work; and that the arbitrator failed “in determining that (Tizzard) had ‘chosen a therapy’, which is contrary to the evidence in the record indicating that cannabis was authorized by (Tizzard’s) doctor, thereby perpetuating the stigmas and stereotypes that human rights legislation seeks to eradicate.”
The application to the court was filed on Wednesday.