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Bulletin | The HR Space

If You Can’t Measure It, You Can’t Manage It – Limitations of Drug Testing Justify Refusal to Accommodate Medical Marijuana

Fasken
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Labour Employment and Human Rights Bulletin | The HR Space

Perceptions of marijuana have changed dramatically. What was an illegal drug is now a recognized medical treatment and is soon to be a legal recreational activity. Employers have struggled to balance these changes with legitimate health and safety issues, particularly since technology to measure impairment has not kept pace. 

The recent arbitration award in Lower Churchill Transmission Construction Employers' Association Inc. and IBEW, Local 1620 explores how far an employer must go to discharge their duty to accommodate a medical marijuana user in a safety-sensitive job when it is not possible to measure current levels of impairment at work.

What Happened in this Case

A union member was referred by his union for employment with Valard Construction LP (Valard). Valard was building a transmission line corridor for a hydroelectric facility. Both of the jobs he was referred for were considered safety sensitive by Valard. Neither required high levels of training or expertise. But, both worked with motorized equipment, near larger 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. His doctor restricted him from driving for 4 hours after use.

Over the next four months or so, 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 alleging that the company wrongfully withheld employment and failed to accommodate.

What the Arbitrator Decided

The arbitrator agreed that the union member had a disability, and the company had to accommodate him to the point of undue hardship. But, he said it would be an undue hardship for the company to accommodate the union member in either job because of the safety risk.

The arbitrator did not believe the union member's marijuana use at night and a four hour driving restriction were sufficient to address the safety risk. He concluded medical marijuana can cause cognitive impairment for longer than four hours. In some cases, up to 24 hours after use. That impairment could affect functioning the next day at the workplace. The arbitrator did not believe a general physician could properly assess the safety risk of that continuing impairment based on a clinic visit and a basic understanding of 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 allow the grievor to work where residual impairment from his evening use could not 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 grievance.

What You Should Take Away

An authorization for 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 is related to a human right related need. If it is, it must be determined whether it can be accommodated in the workplace without undue hardship. As this case demonstrates, that may not always be possible in a safety-sensitive position particularly where current medical science and drug testing technology leaves us unable to determine if a worker is able to work free from current or residual impairment from drug use.

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