Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Medical marijuana found to be undue hardship in safety sensitive positions e 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 LABRADOR arbitrator has found the lack of adequate test- ing to determine impairment from marijuana constitutes undue hardship in trying to accom- modate an employee who uses medical mari- juana in a safety sensitive position. e worker suffered from osteoarthritis and Crohn's Disease. After unsuccessful at- tempts with conventional medication and therapy, he was authorized to use medical cannabis at a THC — the compound in can- nabis that causes impairment — 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 following morning. He sought employment as a utility work- er and later as an assembler on the Lower Churchill Project, a hydroelectric dam con- struction project on the Lower Churchill River in Labrador. However, he was not of- fered the position after his medical cannabis authorization became known. e worker's authorizing physician had made her stan- dard recommendation to avoid certain ac- tivities such as driving for four hours after inhalation or six hours after oral ingestion. She did not feel that the level of impairment on the day after the worker used cannabis would affect job performance. e union argued that the worker was qualified and experienced and had worked on the project previously for other employ- ers without conditions associated with his medical cannabis treatment. Further, the union said there was a failure to accommo- date and individually assess the worker's ability to perform work on the project. e employer responded that the posi- tions were safety sensitive and, therefore, it had to determine whether the worker was able to work without impairment. is was part of the employer's legal obligation to en- sure a safe workplace. e employer said that impairment was an expected consequence of cannabis use and measuring the length of impairment was difficult. e worker had been individually 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. e fact that he had worked on the project previously for another employer did not demonstrate evidence of safe work; rather, he may sim- ply have been fortunate that an incident did not occur. e employer's bottom line was that undue hardship existed in the form of increased workplace safety risk and it could not employ the worker in a safety sensitive position while he was using medical canna- bis every evening. Positions required mental alertness e arbitrator was satisfied that both the utility person and assembler jobs were safety sensitive. Although both required a relative- ly low level of training and expertise, they did involve working sometimes with motor- ized equipment in close proximity to larger operating pieces of equipment in the field and in weather conditions that were often demanding. e arbitrator acknowledged that not every job within the project was necessarily safety sensitive. Although the utility person job did not require as much skill, dexterity or mental focus as some oth- er roles, such as heavy equipment operator, it still demanded the worker's undivided fo- cus and high requirement for mental alert- ness. Otherwise, injury to oneself or fellow employees would inevitably occur. As for the duty to accommodate, the arbi- trator recognized that some assumption of risk by the employer is acceptable within the accommodation process. accommodation to the point of undue hardship requires an individualized assessment as opposed to a blanket determination. In a unionized envi- ronment, both the union and the employee, along with the employer, must be involved and all options must be considered. e em- ployer was entitled to have reasonable medi- cal information sufficient to determine how, if at all, the worker could safely work. Residual impairment up to 24 hours e arbitrator was satisfied that THC is known to effect judgment and motor skills, and it can — and does — cause impairment. e arbitrator cited Health Canada's advice to healthcare professionals that depending on the dose, impairment from THC can last more than 24 hours after last use due to the long half-life of THC. Further, because of that long half-life, drug test screening can be positive for weeks after the last cannabis use. e arbitrator also noted that the Col- lege of Family 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 consumption. e arbitrator said that he was not com- fortable with the physician's conclusion that the worker would be able to work safely only four hours after use. He accepted the employ- er's evidence that the inability to accurately measure the extent of daily impairment due to a lack of available monitoring was a legiti- mate concern when employing a person tak- ing medical cannabis in any safety sensitive position. e arbitrator said if risk is to be managed, an employer must be able to mea- sure the impact of cannabis on the worker's performance. e employer did not have to provide "conclusive evidence of workplace impairment;" that would be an unrealistic and unachievable burden on the employer. e lack of reasonable ability to measure impairment (with blood and urine tests not measuring current impairment), plus the lack of specially trained individuals who could observe and measure impairment of judgment, motor skills and mental capacity presented a risk of harm that could not be readily mitigated. Based on all the evidence, expert and oth- erwise, the arbitrator was satisfied that: •e regular use of medically-authorized cannabis products can cause impairment of a worker in a workplace environment. e length of cognitive impairment can ex- ceed simply the passage of four hours after ingestion. Impairment can sometimes ex- ABOUT THE AUTHOR Brian Johnston Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com. UNDUE HARDSHIP on page 5 »

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