For employers concerned about the growing use of
medical marijuana by employees, a recent decision provides more answers —
and perhaps some comfort — when it comes to accommodation.
Essentially, employers may be able to claim undue hardship when
it comes to employees in safety-sensitive positions who consume medical
It’s a notable decision, said Heather Hettiarachchi, a labour and employment lawyer at Integritas Workplace Law in Vancouver.
“It can amount to undue hardship for an employer to accommodate
medical cannabis use in a safety-sensitive position because there’s no
test for actually assessing current impairment with cannabis use,” she
“What the arbitrator is saying is: if you cannot measure it,
then you cannot manage it, and in a safety-sensitive position, that’s a
huge risk for an employer, so it amounts to undue hardship.”
The case involved Harold Tizzard, who applied for a job at
Valard Construction — a major contractor working on a project owned by
Nalcor Energy involving a hydroelectric generating facility in Labrador.
He applied for a labourer position in November 2016 and was accepted,
subject to a satisfactory drug and alcohol test.
Tizzard — who suffers from osteoarthritis and Crohn’s disease —
revealed he took medical cannabis, and later presented a note
confirming his authorized use of the drug, but the employer requested
While waiting several months to sort out the issue, Tizzard
ended up applying for another position at Valard, that of an assembler.
Ultimately, he was not accepted for employment, despite his
physician saying the impairment from his evening consumption of medical
marijuana only lasted about four hours, so it would not impact him
reporting to work the next morning.
As a result, his union — the International Brotherhood of
Electrical Workers (IBEW), Local 1620 — filed a grievance claiming
Valard wrongfully refused to provide accommodation arising from
Tizzard’s disability. It said he was fit for employment even though he
was using medical cannabis in the evenings.
But Valard said the two positions involved were
safety-sensitive ones, so it was essential to determine a person’s
ability to work without impairment, and the company had an obligation
under legislation to all workers to ensure a safe workplace.
Valard also claimed it met its obligation to individually
assess Tizzard’s case to the extent possible because of the limited
information from his physician. In addition, the safety risks added to
the workplace by Tizzard’s use of medical cannabis brought Valard to the
point of undue hardship.
At the arbitration in April, 13 witnesses were called to
provide evidence, including medical physicians and a pharmacologist.
Arbitrator John Roil also referred to three “guidance” documents — a
2013 document from Health Canada for health-care professionals, a 2014
guidance from the College of Family Physicians of Canada on authorizing
dried cannabis for chronic pain, and 2014 guidelines from the College of
Physicians and Surgeons of Newfoundland and Labrador on marijuana for
In the end, Roil concluded the regular use of medically
authorized cannabis products can cause impairment of a worker in a
workplace, and the length of cognitive impairment can exceed four hours
after ingestion — sometimes up to 24 hours.
In addition, a general practising physician is not in a
position to adequately determine the daily safety issues in a hazardous
“Specialized training in understanding workplace hazards is
necessary to fully understand the interaction between cannabis
impairment and appropriate work restrictions in a given fact situation,”
Newfoundland and Labrador also lack readily available testing
resources “to allow an employer to adequately and accurately measure
impairment rising from cannabis use on a daily or other regular basis,”
he said, and, more importantly, “there is currently no effective or
practical means to accurately measure impairment in the workplace from
evening cannabis use.”
Once Valard had more details about Tizzard’s cannabis use, it
was reasonable to conclude “there was an increased risk of harm from
residual impairment and that no reasonable method to lessen that risk
was available due to a lack of accurate measurement protocols,” said
Roil, finding no evidence of bad faith. “The inability to measure and
manage that risk of harm constitutes undue hardship for the employer.”
While Valard’s accommodation process was not perfect, it reached the correct outcome, said Roil.
“It is easy to have sympathy for the plight of (Tizzard) but he
has chosen a therapy which, while effective in term of his pain relief,
requires more research and knowledge than is currently possible in
order to ensure an employer’s ability to determine impairment in a
Related Article Place Holder
It is a very significant and noteworthy decision, not only in
addressing what can be appropriately considered a safety-sensitive
position, but in dealing with the issue of accommodation and medical
cannabis for those positions, said Brian Johnston, a partner at Stewart
McKelvey in Halifax.
“What has clearly happened is that there is an increasing
knowledge about the lingering, impairing impacts, otherwise known as the
residual impairment, of marijuana, including medical cannabis, and
employers who are becoming better informed about the residual impairment
associated with cannabis are now looking at whether or how well that
risk fits with employment in safety-sensitive positions.”
The arbitrator was satisfied that Valard went through an
accommodating process, including an individualized assessment, and there
was undue hardship, he said.
“Accordingly, the employer had done nothing wrong by deciding
to not offer employment to this person who was seeking a labour job,
otherwise known in this case as a utility worker job or an assembler
job, both of which he was satisfied in the circumstances were
The general view is that it is impossible to determine
impairment in relation to marijuana, said Johnston, “short of putting
the person in a laboratory situation and testing them.”
“(Roil) was saying essentially because there is no… viable,
current test for impairment, therefore it is too much of a risk for the
employer to accept someone who we know will suffer some residual
impairment for some period of time as a result of cannabis consumption,”
“There is, in employment, always some safety health risk, but
in this case, the arbitrator was satisfied the risk was too substantial
for the employer to assume.”
This case is significant in recognizing the limitations on the
current testing technology, and the impairment effects of cannabis, said
Tara Erskine, partner at Mathews Dinsdale in Halifax.
“Also, it recognized that the fact that a person does not
believe they are impaired is not determinative because they may feel
they’re not impaired but they still may not function, respond or react
normally, which is important of course in a safety-sensitive job,” she
“It’s not like alcohol or cocaine, where there’s a narrow
window and if you test someone for alcohol, you know when they’ve
consumed alcohol. It’s not the same for cannabis because it stays in
your system 28 days or longer, so it’s a real problem and its only going
to get more significant when recreational use of cannabis is
Roil was convinced by the evidence that there is no consensus when it comes to testing for impairment, said Hettiarachchi.
“What the arbitrator noted was that, depending on the THC
(tetrahydrocannabinol) amount, impairment could last for up to 24 hours
or even more than 24 hours after the last use so, unlike alcohol or
other drugs, there’s no scientifically proven method to be able to
assess a person’s current impairment from cannabis use.”
It serves as a caution to employers, she said.
“Just because somebody brings a prescription that says, ‘I’m a
medical cannabis user,’ you cannot just take it at face value and stop
there, you need to actually get further information to satisfy yourself
as to: how much cannabis is being used, what are the requirements, what
are the methods of using the cannabis, is it going to be ingested, is it
going to be smoked, etcetera, because the employer would need to find
all that out in order to accommodate the person if it is a non-safety