Arbitrator taps third party examiner in this case of contrasting medical opinions of worker, employer doctors
For the time being, the suspension Nutrien imposed on one of its union welders at a potash mine in Saskatchewan over his use of cannabis will hold, awaiting the opinion of a qualified independent medical examiner.
One labour arbitrator sided with the employer in its decision to keep Lee Pepper – who has been working for the employer since 2010 – out of work until he can prove to the company that the cannabis he used for sleep would not leave him impaired on the job site the next day.
It’s “important that every effort be made to return Mr. Pepper to the workplace with the employer meeting its legislated safety requirements,” said labour arbitrator Daniel Ish about the case, according to a CTV News report.
The percentage of employees testing positive for marijuana after a workplace accident reached a 25-year high in 2022, with the positivity rate increasing by over 200% within a decade, according to a previous report.
In June 2020, Nutrien fired Pepper after he tested positive for cannabis during a random drug test. The test was required as part of a return-to-work agreement following a 2018 medical leave for alcohol addiction treatment, according to the CTV News report.
While Pepper has successfully abstained from alcohol, he tested positive for amphetamine at that time.
A majority of Canadian workers want employers to be able to administer drug testing of workers, according to a previous report.
Pepper contested his dismissal through his union, United Steelworkers Local 7552. They took the matter to arbitration.
In 2021, the labour arbitrator ordered Nutrien to reinstate Pepper in August 2021. However, before Pepper could return to work, he let the company know he had no intention to quit using medical cannabis.
Pepper’s family doctor of 12 years signed off on his prescription. In a letter to the human resources department at the mine, the Pepper’s family doctor also said his patient was directed to smoke pot before bed on work nights to help him sleep, and that this would pose no risk to safety at work, according to CTV News.
However, Nutrien consulted its own doctor, and that doctor testified that it would take 24 hours for the drug to clear his system enough to return to work.
Despite the contradicting opinions, Ish pointed out that Nutrien does not cite any evidence that Pepper has come to work impaired.
“It is important to note, and important for an independent medical examiner to understand, there has been no evidence that Mr. Pepper has ever been impaired at work or that his work performance has been otherwise affected by his use of medical cannabis pursuant to Dr. Sperling’s prescriptions,” Ish said, according to the report.
After Nutrien fired him, Pepper disclosed he had a prescription for amphetamine and shared a copy of the prescription. Nutrien deemed him safe to return to work.
However, he continued to test positive for amphetamines in subsequent drug tests. The employer removed him from the workplace each time. The employer also sent his samples for lab testing despite Nutrien’s knowledge of his prescription.
That went on until a supervisor sought permission to keep him at work on modified duties while the samples were verified off-site, according to CTV News.
After nine random tests, Pepper’s results came back positive for cannabis as well. For this, he confessed his friend offered him a THC gummy while they were fishing on the weekend.
Nutrien accepted the story. However, he was asked to sign a new, more detailed return-to-work agreement, specifying that if he relapsed and didn’t disclose before his next shift, he would be fired.
Soon after, Pepper sought out the prescription for cannabis. When his next test came back positive, Nutrien fired him.
Nutrien never specified Pepper needed to disclose new prescriptions – only relapses, Ish noted, according to the report.
Recently, the RCMP announced it is relaxing its rule on recreational marijuana use for its members.
