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Undue hardship cited in medical marijuana ruling

Arbitrator said length of cognitive impairment can last up to 24 hours
By Sarah Dobson
| www.cos-mag.com
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Vaping pens are seen displayed inside MedMen, a cannabis store serving medical prescription patients, in New York. REUTERS/Mike Segar

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.

“There’s no test for actually assessing current impairment with cannabis use… 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 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 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, 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.”

“The inability to measure and manage that risk of harm constitutes undue hardship for the employer,” Roil said.

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.”

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 and Clark in Halifax.

“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 it’s only going to get more significant when recreational use of cannabis is legalized.”

This article originally appeared in Canadian HR Reporter, a Thomson Reuters publication. 

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