Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2018 News | August 2018 | CSR Medical marijuana found to be undue hardship in safety sensitive positions The inability to test for residual impairment hours after consuming marijuana made employer unable to determine if it was safe for worker to perform safety sensitive job duties BY BRIAN G. JOHNSTON A NEWFOUNDLAND and Lab- rador arbitrator has found the lack of adequate testing to de- termine impairment from mari- juana constitutes undue hard- ship in trying to accommodate an employee who uses medical marijuana in a safety sensitive position. The worker suffered from os- teoarthritis and Crohn's Disease. Over the years, he unsuccess- fully attempted conventional medication and therapies. Sub- sequently, he was authorized to use medical cannabis at a THC level of less than 20 per cent; he consumed 1.5 grams inhaled by vaporization each evening and reported relief from his chronic pain and no impairment the fol- lowing morning. He sought employment as a utility worker (a labourer posi- tion) and later as an assembler on the Lower Churchill Project, a hydroelectric dam construction project on the Lower Churchill River in Labrador. However, he was not offered the position af- ter his medical cannabis autho- rization became known. The worker's authorizing physician had made her standard recom- mendation for patients to avoid certain activities such as driving for four hours after inhalation or six hours after oral ingestion. She did not feel that the level of impairment remaining on the day after he used cannabis would affect job performance. The union argued that the worker was qualified and expe- rienced and had worked on the project previously for other em- ployers without conditions asso- ciated with his medical cannabis treatment. Further, the union said there was a failure to accom- modate and individually assess the worker's ability to perform work on the project. The employer responded by saying that the positions sought were safety sensitive and, therefore, it had to determine whether the worker was able to work without impairment. This was part of the employer's legal obligation to ensure a safe work- place. The employer said that impairment was an expected consequence of cannabis use and measuring the length of impairment was quite difficult. The worker had been individu- ally assessed but the safety risks added to the workplace by the worker's medical cannabis use brought the employer to the point of undue hardship. The fact that he had worked on the project previously for another employer did not demonstrate evidence of safe work; rather, he may simply have been fortunate that an incident did not occur. The employer's bottom line was that undue hardship existed in the form of increased workplace safety risk and it could not em- ploy the worker in a safety sensi- tive position while he was using medical cannabis every evening. Positions required focus and mental alertness The arbitrator was satisfied that both the utility person and as- sembler jobs were safety sensi- tive. Although both required a relatively low level of training and expertise, they did involve working sometimes with motor- ized equipment in close prox- imity to larger operating pieces of equipment in the field and in weather conditions that were often demanding. The arbitrator acknowledged that not every job within the project was necessar- ily safety sensitive. Although the utility person job did not require as much skill, dexterity or mental focus as some other roles, such as heavy equipment operator, it still demanded the worker's undivided focus and high re- quirement for mental alertness. Otherwise, injury to oneself or fellow employees would inevita- bly occur. As for the duty to accommo- date, the arbitrator recognized that some assumption of risk by the employer is acceptable with- in the accommodation process. Accommodation to the point of undue hardship requires an individualized assessment as opposed to a blanket determi- nation. In a unionized environ- ment, both the union and the employee, along with the em- ployer, must be involved and all options must be considered. The employer was entitled to have reasonable medical information sufficient to determine how, if at all, the worker could safely work. Residual impairment 24 hours after consumption The arbitrator was satisfied that THC is known to affect judg- ment and motor skills, and it can — and does — cause im- pairment. The arbitrator cit- ed Health Canada's advice to healthcare professionals that depending on the dose, impair- ment from THC can last more than 24 hours after last use due to the long half-life of THC. Fur- ther, because of that long half- life, drug test screening can be positive for weeks after the last cannabis use. The arbitrator also noted that the College of Fam- ily Physicians of Canada in 2014 similarly cited Health Canada's warning that the ability to drive or perform activities requiring alertness may be impaired up to 24 hours following a single con- sumption. The arbitrator said that he was not comfortable with the autho- rizing physician's conclusion that the worker would be able to work safely only four hours after Unknown > pg. 8 Credit: Shutterstock/Sherry Yates Young

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