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Undue hardship cited in medical marijuana ruling

Worker denied accommodation for safety-sensitive position
Powered By Canadian HR ReporterWorkplace - HR Policies||Written By Sarah Dobson
Undue hardship cited in medical marijuana ruling
Nalcor Energy’s headquarters in St. John’s. Credit: Google Street View

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 cannabis.

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 said.

“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.”

Background

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 more information.

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 medical purposes.

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 workplace.

“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,” said Roil.

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 construction environment.”

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Measuring impairment

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 safety-sensitive positions.”

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,” he said.

“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 said. 

“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 legalized.”

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 position.”