A union welder at a potash mine in Saskatchewan will remain on suspension after refusing to give up his nightly toke of medical marijuana, following the ruling of a provincial labour arbitrator.
Labour arbitrator Daniel Ish says global fertilizer giant Nutrien was justified in keeping Lee Pepper out of work at the Vanscoy potash mine until the company was satisfied the cannabis he used for sleep would not leave him impaired on the job site the next day.
Pepper has worked at the mine since 2010.
In the recently-released decision based on a series of November hearings, Ish writes that Nutrien and Pepper both produced conflicting — but legitimate — medical accounts of the duration of effects from THC.
The two differing accounts underscore the still-unsettled debate over the safe use of cannabis following its legalization in 2018.
Pepper’s family doctor of 12 years signed off on his prescription and wrote a letter to the human resources department at the mine saying 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.
Nutrien consulted its own doctor, who testified it would take 24 hours for the drug to clear his system enough to return to work.
Despite the duelling doctors opinion, Ish points 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,” he writes.
By all accounts, Pepper has a long history of conflict with his employer over substance use.
In June 2020, Pepper was fired from his position after testing 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.
He grieved the dismissal through his union, United Steelworkers Local 7552, who took the matter to arbitration.
The labour arbitrator ordered Nutrien to reinstate Pepper in August 2021, but before he could return to work, he let the company know he had no intention to quit using medical cannabis.
Now, Pepper will remain on suspension until he can be examined by a qualified independent medical examiner.
In his written decision, Ish says it’s “important that every effort be made to return Mr. Pepper to the workplace with the employer meeting its legislated safety requirements.”
“It is also important that this case be finally brought to a timely conclusion.”
The ruling marks the latest chapter in a dispute that has stretched on for years.
According to Ish, Pepper has successfully abstained from alcohol since his 2018 treatment, but his employer was surprised to discover the result of his first mandated random drug test after returning to work came back positive for amphetamine.
He was sent home in a taxi pending further lab testing and a medical review. He disclosed he had a prescription for amphetamine and shared a copy of the prescription.
Nutrien deemed him safe to return to work.
Pepper continued to test positive for amphetamines in subsequent drug tests and was removed from the workplace each time while the sample was sent for lab testing, despite Nutrien’s knowledge of his prescription.
This continued until a supervisor sought permission to keep him at work on modified duties while the samples were verified off-site.
About nine random tests later, Pepper’s results came back positive for cannabis as well. He confessed his friend offered him a THC gummy while they were fishing on the weekend.
Nutrien accepted the story, but ordered him to sign a new, more detailed return-to-work agreement — this one specified 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.
According to Ish, Nutrien never specified Pepper needed to disclose new prescriptions — only relapses.
