Medicinal cannabis use: arbitrator sides with employer

May 29, 2018

On April 30th, 2018, the Arbitrator in the Lower Churchill Transmission Construction Employers’ Association and IBEW Local 1620 dispute decided on the side of the employer and declared that it was undue hardship in terms of an unacceptable increase in safety risk if the employer was forced to put the grieving employee, who was authorized to use medical cannabis, to work within its company.

The employer had not offered employment to this employee due to the fact that he used medical cannabis as directed by his physician, a circumstance the employer argued was a safety risk to the employee and other employees at the jobsite. With no way to measure impairment from cannabis, and with traces of THC remaining in the system of the user for up to 24 hours, the employer did not feel confident in assessing the level of impairment of the employee and thus could not put the employee to work.

The employee in question was diagnosed with osteoarthritis and Crohn’s Disease, and had been unsuccessful when seeking relief through conventional medication and therapies. As a result, his physician authorized his use of medical cannabis at less than 20% THC, of which he inhaled 1.5 grams each evening. The employee reported that this relieved his chronic pain, but did not impair him the following morning when he began work. His physician had recommended that her patient not partake in certain activities like driving 4 hours after inhalation, or 6 hours after oral ingestion of cannabis, and added that she did not expect the cannabis used by her patient to impair him or affect his job performance in the mornings after his evening treatment.

The grievor had applied to work as a Utility Worker and later as an Assembler in the Lower Churchill Project, but was not offered either position when his medical cannabis use was made apparent to his employer. The employee’s Union argued that the employee was qualified and experienced and had previously worked on the same Project with other employers who had not imposed special conditions upon his medical cannabis use. Local 1620 ultimately viewed the employer’s failure to employ its member as an unwillingness to accommodate and individually assess the employee’s ability to work in the roles for which he applied.

In response, the Lower Churchill Transmission Construction Employers’ Association posited that the positions for which the grievor had applied were considered safety sensitive and required confidence that the employee placed in that position could work without impairment. The employer cited this as its legal obligation to ensure a safe workplace, and that impairment was an expected result of cannabis use and measuring the length of the employee’s impairment, even in consideration of the time at which the employee consumed the drug, was too difficult to determine.

The employer stated that while they had assessed the employee in question, the workplace safety risks that would result from the grievor’s employment posed undue hardship upon the employer. The employer argued that the employee’s previous work for the same company did not necessarily show evidence of safe work, but that the employee had been fortunate that no safety breaches occurred while he had been on the jobsite.

The Arbitrator acknowledged that the Utility Person and Assembler jobs, while requiring low levels of training and experience, were still positions for which use of motorized equipment and close proximity to certain field equipment and weather conditions existed, and were roles that required focus and a high level of mental alertness to avoid injury. For these reasons, the Arbitrator ruled that these positions could be reasonably labeled as safety sensitive. In response to the Union’s claims that the employer had not accommodated the grievor, the Arbitrator allowed that some assumption of risk must take place on behalf of employers and determined that the employer was entitled to obtain reasonable medical information sufficient to determining whether or not the grievor could safely work within the jobsite.

In its ruling, the Arbitrator cited Health Canada when stating that impairment from THC can last up to 24 hours after its last use, as well as the College of Family Physicians of Canada which, in 2014, warned Canadians that driving or performing activities requiring mental alertness could be impaired up to 24 hours after cannabis use. The Arbitrator ruled that the employee’s physician’s recommendation that the employee could work safely 4 hours after using cannabis was not acceptable, and noted the current inability of testing equipment to determine levels of cannabis impairment and thus measure appropriate levels of sobriety when approaching roles in safety sensitive positions. Without this ability to accurately measure cannabis’ impacts, and without the specially trained staff required to monitor and assess levels of impairment, the Arbitrator ruled that the risk could not be managed, and it would be impossible for the employer to provide “conclusive evidence of workplace impairment about the Grievor.”

As a result, the Arbitrator found:

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.

2 [sic]. 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.