Perceptions of marijuana have changed dramatically. What was an illegal drug is now a recognised medical treatment and is soon to become a legal recreational activity. Employers have struggled to balance these changes with legitimate health and safety issues, particularly since technology to measure impairment has failed to keep pace.
The 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 the levels of impairment at work cannot be measured.
A union member was referred by his union for employment with Valard Construction LP, which was building a transmission line corridor for a hydroelectric facility. Both of the jobs for which he was referred were considered safety sensitive by Valard. Neither job required high levels of training or expertise; however, both involved work with motorised equipment, near heavy equipment, in demanding conditions and often at remote worksites.
The company accepted the union member for employment conditional on a satisfactory drug and alcohol test. The union member tested positive because he used marijuana to manage pain from medical conditions. His doctor had prescribed him 1.5 grams of high-tetrahydrocannabinol-concentrated marijuana to use each night and restricted him from driving for four hours after use.
Over the following four months, the parties exchanged information to understand and try to manage the use of medical marijuana on the project. The company was not satisfied with the information provided or that the union member could work safely on the project. The union filed a grievance claiming that the company wrongfully withheld employment and failed to accommodate.
The arbitrator agreed that the union member had a disability and that the company must accommodate him to the point of undue hardship. However, he stated that it would be an undue hardship for the company to accommodate the union member in either job due to the safety risk.
The arbitrator did not believe that the union member's night-time marijuana use 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. Such impairment could affect the worker's functioning the next day at the workplace. The arbitrator held that a general physician could not properly assess the safety risk of such a continuing impairment based on a clinic visit and a basic understanding of the patient's work. Instead, specialised training was necessary to fully understand the interaction between an impairment and the work restrictions in a given situation.
The arbitrator concluded that it would be an undue hardship to allow the claimant to work where residual impairment from his evening use of marijuana could not be addressed by monitoring. He noted that there was no readily available means of measuring impairment from regular marijuana use and "if the employer cannot measure impairment, it cannot manage risk". This was reinforced by health and safety legislation that prohibited working while impaired. Accordingly, the arbitrator dismissed the claim.
Authorisation for the use of medical marijuana is not a free pass to use marijuana at work. Employers must go through an accommodation process to determine whether the use of marijuana pertains to a human rights-related need. If so, the employer must determine whether such use can be accommodated in the workplace without undue hardship. As this case demonstrates, that may not always be possible in a safety-sensitive role, particularly where current medical science and drug-testing technology cannot determine whether a worker can work free from current or residual impairment as a result of drug use.
For further information on this topic please contact Shane D Todd at Fasken by telephone (+1 416 366 8381) or email ([email protected]). The Fasken website can be accessed at www.fasken.com.
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