Perceptions of marijuana have changed dramatically in Canada. What used to be an illegal drug is now a recognized medical treatment and is soon to be a legal recreational activity. Canada’s Cannabis Act—making recreational marijuana legal—will take effect on October 17, 2018. Employers have struggled to balance the changes against legitimate health and safety issues, particularly since the technology to measure impairment has not kept pace.
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A recent arbitration award in Lower Churchill Transmission Construction Employers’ Association Inc. and IBEW, Local 1620 explores how far an employer must go to discharge its duty to accommodate a medical marijuana user in a safety-sensitive job when it isn’t possible to measure current levels of impairment at work.
Doctor’s Rx: 1.5 Grams of Marijuana Each Night
A union referred one of its members for two jobs with Valard Construction LP, which was building a transmission-line corridor for a hydroelectric facility. The company considered both jobs to be safety-sensitive. Neither required high levels of training or expertise. But both involved working with motorized equipment near larger, heavy machines, in demanding conditions, and often at remote worksites.
The company accepted the union member for employment conditionally, provided he passed a drug and alcohol test. He tested positive, however, for the marijuana he used to manage the pain from his medical conditions. His doctor had prescribed 1.5 grams of high-tetrahydrocannabinol-concentrated marijuana for him to use each night. The doctor also restricted him from driving for four hours after each use.
Over the next four months or so, the parties exchanged information to understand and try to manage the union member’s medical marijuana use on the project. Valard wasn’t satisfied with the information and didn’t think he could work safely on the project. The union filed a grievance alleging that the company wrongfully withheld employment and failed to accommodate.
Arbitrator: “If You Can’t Measure It, You Can’t Manage It”
The arbitrator agreed that the union member had a disability, and Valard had to accommodate him to the point of “undue hardship.” But the arbitrator said it would be an undue hardship for the company to accommodate him in either job because of the safety risk.
The arbitrator didn’t believe the union member’s marijuana use at night and a four-hour driving restriction were sufficient to address the safety risk. He concluded that medical marijuana can cause cognitive impairment for longer than four hours—in some cases, up to 24 hours after use. The affects carry over into the next day at work. The arbitrator didn’t believe a general physician could properly assess the safety risk of that continuing impairment based on clinic visits and a basic understanding of the patient’s work. He thought specialized training was necessary to fully understand the interaction between impairment and work restrictions in a given fact situation.
The arbitrator concluded that it would be an undue hardship to let the union member work if the residual impairment from his evening usage of medical marijuana could not be monitored. The arbitrator noted there is no readily available way to measure impairment from regular marijuana use, and “if the employer cannot measure impairment, it cannot manage risk.” In addition, the nation’s health and safety legislation prohibits working while impaired. Accordingly, the arbitrator dismissed the grievance.
What You Should Take Away
An authorization for medical marijuana isn’t a free pass to use the drug at work. Employers must go through an accommodation process to determine whether the drug use is related to a human rights-related need. If it is, then you must determine whether it can be accommodated in the workplace without undue hardship. As the case against Valard shows, that may not always be possible in a safety-sensitive position. That’s especially true since current drug-testing technology leaves us unable to determine if a worker taking medical marijuana can do the job without current or residual impairment.
Shane Todd is grateful for the assistance of summer student Jessica Nolan in preparing this update.
