June 11, 2018
[AYR, ON] – In the arbitration decision of Lower Churchill Transmission Construction Employers’ Association representing Valard Construction v. IBEW Local 1620 (Tizzard Grievance), in Newfoundland, Arbitrator John Roil considered whether an employer violated the duty to accommodate in deciding not to place a medicinal cannabis user in a safety-sensitive role.
The grievor, Tizzard, in this case, had osteoarthritis and Crohn’s disease and had been medically authorized to use cannabis from a medical clinic that authorizes cannabis. The referral to this clinic was made after other treatment methods had been attempted without success (including prescribed cannabinoid Nabilone). The Arbitrator was satisfied that all alternative treatment options had been trialed and exhausted and that “accommodation could not reasonably be found in this case by changing the Grievor’s medication”.
Tizzard was authorized 1.5g a day of less than 20% THC at first (which was later increased to 22% THC). He stated that he would consume this each evening and reported no signs of feelings of impairment in the morning.
In 2015, the grievor began working at the Project as a Utility Person. When he was authorized to begin using medical cannabis in 2016, he advised his supervisor who took no issue with the use of cannabis in the evening. The grievor ceased working there in 2016 due to a shortage of work. He then became aware of a Labourer position with another employer, Valard, on the Project. His acceptance was subject to a satisfactory drug and alcohol test.
Valard sought additional information from the Grievor’s physician about his authorization. That labourer position was canceled but another position for an Assembler became available and Tizzard again applied, but did not get the job.
Through an investigation process, a letter was sent to his authorizing physician and he was asked to see a SAP to rule out substance use disorder presumably. Tizzard advised that they laughed at him and advised he did not have an addiction he had a ‘prescription’. He did attempt to discontinue his cannabis use for 5 months.
Similar to what we often see from physicians authorizing cannabis, the physician advised not to drive or operate machinery for 4 hours after inhalation and 6 hours after ingestion. She also advised that the significant effect was gone in about 2 hours and that she did not feel that the “level of impairment remaining the next day would affect his job performance”
The Arbitrator concluded that the project is a safety-sensitive workplace.
The Arbitrator held it would constitute undue hardship to accommodate the Grievor.
This was based on the medical and pharmacological evidence, which he concluded the following:
The regular use of medical cannabis can cause impairment of a worker in a workplace environment. The length of cognitive impairment of a worker and can sometimes exist for up to 24 hours after use.
Individuals who consume in the evenings may sincerely believe they are not impaired in their subsequent daily functioning; but may, in fact, continue to suffer the effects of “residual impairment”. The lack of awareness into one’s functional impairment itself may be an offshoot of cannabis use.
A general practicing physician is not in a position to determine, based simply on an assessment of the patient and a basic understanding of his or her work, the daily safety issues in a hazardous workplace. Specialized training is required to understand the interaction between cannabis use and work restrictions.
There are currently no readily available testing resources to allow an employer to adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis.
The Arbitrator held the grievor could not perform the workplace positions without potentially impacting the safety of the workplace. He also noted his assessment was based on these two roles only as there was no evidence called to suggest there were other positions of a non-safety sensitive nature that may have been appropriate. On the issue of the safety risk, the arbitrator stated:
“The safety hazard that would be introduced into the workplace here by residual impairment arising from the Grievor’s daily evening use of cannabis product could not be ameliorated by remedial or monitoring processes. Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the Employer if it put the Grievor to work. As previously stated, if the Employer cannot measure impairment, it cannot manage risk.”
Medical cannabis is expected to continue to grow for many reasons. One of which is that many patients with medical cannabis authorizations who test positive on a roadside test are exempt from prosecution in a number of European countries. If this indeed occurs in Canada, we will most certainly expect a continuing upward trend in the number of authorizations for Cannabis.
What this Arbitration tells us is that cannabis impairment can last for 24 hours and if an employee is using daily, this will pose a safety risk in a safety sensitive workplace. Safety is paramount and all employers must investigate each and every employee using medical cannabis in a safety sensitive role. DriverCheck’s Medical Cannabis Review Program can help you! Contact cannabis@DriverCheck.ca
Hope you enjoyed this article. Have comments or questions about this article? Let us know by emailing us at DriverCheck@DriverCheck.ca
About Dr. Melissa Snider-Adler, M.D., C.C.F.P., M.R.O. (AAMRO), D,A.B.A.M.:
Chief Medical Review Officer, DriverCheck Inc.
Dr. Snider-Adler is the Chief Medical Review Officer for DriverCheck. Her background is in Family Medicine, but now works primarily in the field of Addiction Medicine. She has been providing Opioid Agonist Therapy in multiple practice settings throughout Ontario for the last sixteen years. Dr. Snider-Adler is certified as a Medical Review Officer by the American Association of Medical Review Officers. She is also certified as a Physician practicing Addiction Medicine by the American Board of Addiction Medicine. Dr. Snider-Adler is an Assistant Professor at Queen’s University Department of Family Medicine. She was one of the authors of the 2011 Methadone Maintenance Treatment Program Standards and Clinical Guidelines and continues to work as a Peer Assessor for the College of Physicians and Surgeons of Ontario where she also sits on the Methadone Assessors Committee. Dr. Snider-Adler gives talks across Canada to companies, physicians and the community about workplace substance abuse and addiction prevention and treatment.