With the recent legalization of recreational cannabis across Canada, employers are increasingly worried about its impact on safety-sensitive workplaces. Even though medical cannabis has been legal in Canada since 2001, similar concerns continue to exist about how to accommodate an employee where they hold a safety-sensitive position.

In a 2018 arbitration decision, Arbitrator Roil dealt with this very question of how to accommodate an employee’s medical cannabis use in the construction industry.

International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard)

Facts

The Lower Churchill Project involves the development of a hydroelectric facility and related infrastructure in order to carry power to consumers. Numerous contractors were responsible for construction of the transmission lines in what is known as “the Project.” One major contractor was Valard Construction LP ( “Valard”).

In 2016, Mr. Tizzard applied for a labourer job and was accepted for employment, subject to a satisfactory drug and alcohol test – a normal requirement for work at the Project. Mr. Tizzard has a prescription for the use of cannabis for the management of pain arising from osteoarthritis and Crohn’s disease. He is permitted to consume up to 1.5 grams of cannabis with a THC level of 22%, which he consumes by vaporization each evening. Mr. Tizzard informed the Union about his cannabis authorization which requested that his doctor fill out a questionnaire. When Mr. Tizzard’s doctor had finally done so, the original position Mr. Tizzard had applied for had been cancelled.

In February 2017, Mr. Tizzard applied for the position of Assembler, but he was turned down for this position and it was requested by Valard that he see a Substance Abuse Specialist. Despite clarifying that he had a prescription and not an addiction, Mr. Tizzard became frustrated as he needed employment and stopped taking his medical cannabis for 5 weeks so that the THC would clear from his body. He was hired by another subcontractor to The Project as a general labourer. However, at the last minute, Mr. Tizzard received a call in which he was told not to report for work. According to Mr. Tizzard, he had been “red-flagged” due to his medical cannabis use and nobody was allowed to hire him to work on The Project.

The Law

Ontario’s Human Rights Code is not like other laws – it is considered “quasi-constitutional,” meaning that it prevails over all other provincial legislation. It is to be interpreted broadly, and its protections apply even in the pre-hiring stage. For example, a job applicant’s needs related to Code grounds must be accommodated for any part of the hiring process. The hiring process must be fair and employers cannot screen out applicants based on any protected grounds.

During the employment relationship, an employer has the duty to accommodate an employee’s disability up to the point of undue hardship. Courts have held that assumption of some risk in the workplace is acceptable within the accommodation process. Therefore, in accommodating a person with a disability, it is not required that all risk be eliminated from that person’s work.

Further, each person with a disability must be considered, assessed, and accommodated individually. Such individualized accommodation has been referred to as the essence of accommodating people with disabilities. Any inquiry into accommodating a worker with a disability in a unionized environment entails a search of the various possible work options available for that worker. The employer has the primary obligation to consider accommodation but the union also plays a role.

Arbitrator’s Reasoning

In deciding whether Valard had failed to accommodate Mr. Tizzard’s disability by not providing him with employment, the arbitrator first assessed the labour positions of Utility Worker and Assembler, concluding that both were safety-sensitive and inherently hazardous for all those who attend the various job sites for The Project.

Since all positions were safety-sensitive, the arbitrator had to decide whether Mr. Tizzard could work in one of these safety-sensitive positions while consuming medical cannabis.

The Arbitrator reviewed medical and pharmacological evidence including medical literature and guiding documents from Health Canada, the College of Family Physicians of Canada, and the College of Physicians and Surgeons of Newfoundland and Labrador. He also reviewed a report by the Task Force set up to advise the Federal Government on cannabis legalization for the most recent independent information available about the measurement of impairment from the use of cannabinoids. Based on his review of these documents, and evidence from specialized witnesses, the Arbitrator reached the following conclusions:

1. The regular use of medically-authorized cannabis products can cause impairment of a worker in a workplace environment. The length of cognitive impairment can exceed simply the passage of 4 hours after ingestion. Impairment can sometimes exist for up to 24 hours after use.
2. Persons consuming medical cannabis in the evening may sincerely believe that they are not impaired in their subsequent daily functioning; they can, however, experience residual impairment beyond the shortest suggested time limits. The lack of awareness or real insight into one’s functional impairment can be a consequence of cannabis use. In that context, a person may not experience ‘euphoria’ (as mentioned in the Health Canada Guidance), yet still not function, respond or react normally while impaired by cannabis use.
3. A general practicing physician is not in a position to adequately determine, simply grounded on visual inspection of the patient in a clinic and a basic understanding of patient’s work, 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.
4. There currently are no readily available testing resources within the Province of Newfoundland and Labrador to allow an employer to adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis.

Decision

The Arbitrator concluded that Mr. Tizzard’s impairment posed a safety hazard as there is currently no effective or practical way to measure his impairment from evening cannabis use. Further, he found that the safety hazard introduced by residual impairment could not be ameliorated by monitoring or remedial processes. Therefore, the Arbitrator erred on the side of caution and held that hiring Mr. Tizzard would amount to undue hardship for Valard.

Takeaway

This decision may provide some clarity as to the laws surrounding accommodating employees who use medical marijuana in safety-sensitive workplaces. Although the threshold of  undue hardship is a tough one to meet, in safety-sensitive workplaces where alternative positions are not available or residual effects of impairment cannot be ameliorated, other decision makers may also err on the side of caution as was done here.

For more information on whether accommodating an employee with a disability may amount to undue hardship in your workplace, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.