Clearing the cannabis haze: Safety is still paramount

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By James D. Kondopulos
and Bobby Sangha

Few headlines have garnered
more attention in the Canadian media this year than the legalization of
cannabis.

While the announcement has
been well received by some, employers — especially those with safety-sensitive
operations — remain concerned about workplace safety.

Adding to the concern for
employers is the human rights duty to accommodate an employee who has been
prescribed medical marijuana to deal with a physical or mental health
condition. A recent labour arbitration decision out of Atlantic Canada may,
however, help to clarify the law around accommodating employees who use medical
marijuana.

In Lower Churchill
Transmission Construction Employers’ Assn. Inc. -and- IBEW, Local 1620 (Tizzard
Grievance) (Unreported: April 30, 2018)
, Arbitrator John Roil, Q.C.
considered whether an employer’s inability to accurately measure the impairing
effects of cannabis in the context of a safety-sensitive position amounted to
undue hardship under human rights law.

While it remains to be seen
whether the decision will survive judicial review, the reasoning of the
arbitrator was generally sound and should be persuasive.

Background

Harold Tizzard applied for
a labourer position with Valard Construction LP. The company was seeking
personnel to assist with its contracting work on the Lower Churchill project,
the development of a hydroelectric generating facility in Labrador.

At the time of applying for
the job, Tizzard had a medical prescription permitting him to consume up to 1.5
grams of cannabis with THC levels of up to 22 percent on a daily basis. He
suffered from pain associated with a diagnosis of Crohn’s disease and
osteoarthritis. After other medication proved to be unsuccessful in alleviating
his pain, he was prescribed medical marijuana.

Valard hired Tizzard on the
condition that he successfully complete a pre-employment drug and alcohol test.
Shortly after learning that he had a prescription for medical marijuana and failed the test, Valard
retained the services of an independent medical expert and sought medical
information from Tizzard.

After months of discussion
with Tizzard’s union and thoroughly considering his medical information, Valard
declined to employ him because of its concerns about workplace safety.

Decision

The issue before Arbitrator
Roil was whether Valard had failed to accommodate Tizzard’s disability by not
providing him with a job.

The arbitrator first
considered whether the labourer positions at Valard in which Tizzard was
interested were safety-sensitive. He had no difficulty determining that the
positions were inherently hazardous because it was clear on the evidence that
the job sites had harsh weather conditions and difficult terrain.

Arbitrator Roil was
satisfied that Valard did not have non-safety-sensitive positions in its
operations. He was also satisfied that Tizzard had explored other medication
options to alleviate his pain but none of those options had been successful.
The arbitrator was thus left with the question of whether Tizzard could work safely
as a labourer while consuming medical marijuana.

A number of medical experts
were called to give evidence on Tizzard’s possible impairment after consuming
1.5 grams of cannabis each evening the day before his shift. Relying
exclusively on expert testimony and medical literature, the arbitrator
concluded that the impairing effects of cannabis can last up to 24 hours after
use and there was no readily available testing resource in the province at that
time to allow an employer to adequately and accurately measure impairment from
cannabis following daily or regular use.

Highlighting the unknowns
around impairment while on the job and the applicable occupational health and
safety legislation, the arbitrator concluded that Valard should not be required
to assume the safety risk. He ruled that the inability to measure Tizzard’s
impairment posed an unmeasurable safety hazard and accordingly amounted to
undue hardship for the employer.

Takeaways

1.  Evidence remains key. To win at arbitration, employers
must be able to speak to the safety-sensitive nature of a particular position
and perhaps the business and industry as a whole. Expert medical evidence on
the impairing effects of cannabis may well be required.

2.  Residual effects of cannabis use can
last up to 24 hours.
While
the scientific research is ongoing, there is evidence that the impairing
effects of cannabis can last.

3.  Employee self-reporting on cannabis
use and its effects is unreliable.
The arbitrator in this case gave short shrift to Tizzard’s self-reporting
on the impact of cannabis consumption on his level of functioning. It can be
inferred that adjudicators will be likely to reject medical evidence based on
similar self-reporting.

4.  Inability to accurately measure
impairment may amount to undue hardship.
There is much to commend an approach in which an
employer’s inability to accurately measure the impairing effects of cannabis,
and properly assess the associated risk for a safety-sensitive position, is
considered to be undue hardship under human rights law. The approach is
compelling because it errs quite rightly on the side of caution and tips the
balance in favour of workplace safety.

James D. Kondopulos is a founding member and partner
(practising through a law corporation) at the employment and labour law
boutique of Roper Greyell LLP. He has been named by Lexpert as a
Leading Lawyer Under 40 and a Litigation
Lawyer to Watch. He has also been recognized by his peers as a leading
lawyer in employment and labour law and listed in
Best Lawyers in Canada,
Who’s Who Legal and the Canadian Legal Lexpert Directory. James
can be reached by telephone at (604) 806-3865 or by e-mail at
jkondopulos@ropergreyell.com.
For more information about James and Roper Greyell, please visit https://ropergreyell.com/our-
people.

Bobby Sangha is an articled student at Roper
Greyell LLP. Prior to joining the firm, Bobby worked as a review officer at
WorkSafeBC, competed as part of the UBC team at a national labour arbitration
competition, and received academic awards for excellence in administrative and
labour law. Bobby can be reached by e-mail at
bsangha@ropergreyell.com.

This article was previously printed in Business in Vancouver. While every effort has been
made to ensure accuracy in the article, you are urged to seek specific advice
on matters of concern. It is for general information purposes only and does not
constitute legal advice.