Construction North 2018 - 15

©ISTOCK/LPETTET

LEGAL REPORT

Arbitrator Supports

Employer in Medical Marijuana Case

A

n employee who was authorized
to use medical marijuana was
prevented from working on a
project, on the basis of the risk associated with having someone who may
have been impaired working in a safety
sensitive position.
The basis for the refusal to allow the
employee to work was the employer's
concern that they could not adequately
measure the employees' impairment
from the use of marijuana.
The Arbitrator in Lower Churchill
Transmission Construction Employers'
Association and IBEW, Local 1620
agreed with the employer and dismissed
a grievance. The Arbitrator found that
the employer was unable to readily
measure the impairment from cannabis,
based on currently available technology
and resources. Consequently, the inability to measure and manage the risk of
harm was found by the Arbitrator to be
an undue hardship on the employer.
In this case, the Grievor had osteoarthritis and Crohn's Disease. Based on
an inability to successfully treat the disease, he was authorized to use medical
cannabis. The Grievor claimed that he
only used the product at night and that
at a THC level of less than 20% he had
no impairment the following morning.
One of the things that are interesting
to note in this case is that his physician provided an opinion that while the
Grievor should avoid activities such as

driving for 4-6 hours; she did not feel
the level of impairment the following
morning would affect his job performance. Nonetheless, the Employer would
not place the Grievor on either project.
The Union argued the Employer failed
to accommodate by not placing the
Grievor on either project. It also noted
that the Grievor had worked for other
employers on these projects, or similar
projects and that there was no objection
to the Grievor working, nor had there
been any incidents concerning safety.
The Employer argued that the positions sought were safety sensitive and
as such, the Employer had to ascertain
itself that the Grievor could work safely
and without impairment. The Employer
argued that given current technology, it
was very difficult to accurately measure
impairment and that it was unable to
determine if the Grievor could successfully work. It was on this basis that the
Employer took the position that it could
not accommodate the Grievor on the
basis of undue hardship.
The Arbitrator concluded that the
positions sought by the Grievor were
safety sensitive. He further found that
the product consumed by the Grievor
was known to reduce judgement and
motor skills. The Arbitrator considered
Health Canada's and the College of
Physician's and Surgeon's advice that
impairment from THC can last more than
24 hours and as a consequence was not

By Kathleen Stokes
Partner, Weaver Simmons

comfortable with the position taken by
the physician of the Grievor that the
Grievor was fit to work after 4-6 hours.
The Arbitrator accepted the Employer's
evidence that the inability to accurately
measure the extent of impairment was
a legitimate concern when employing
a person in a safety sensitive position
that was taking medical marijuana. The
Arbitrator agreed that the Employer must
be able to measure impact of the drug
on the worker's performance.
The Employer was not required to
have conclusive evidence of workplace
impairment about the Grievor.
The lack of reasonable ability to
measure impairment (with blood and
urine tests not measuring current
impairment), plus the lack of specially
trained individuals who could observe
and measure impairment of judgment,
motor skills and mental capacity presented a risk of harm that could not be
readily mitigated.
The Arbitrator was satisfied that
undue hardship in terms of unacceptable increased safety risk would result
to the Employer if it put the Grievor to
work with his authorized medical cannabis use.
This is a very important precedent for
allowing employers to consider possible
impairment in safety sensitive positions
even in situations when it is not clear
on the evidence that the employee
is impaired.
❑
Construction North 2018 * 15



Table of Contents for the Digital Edition of Construction North 2018

Executive Director’s Report
President’s Report
Northern Ontario Project Attracts International Attention
70 Years and Counting
Arbitrator Supports Employer in Medical Marijuana Case
Hiring a Lawyer – Choosing a Tombstone
NOCA Celebrates 70 Years
Not Just for Guys: Industry Wants to See More Women Enter Construction
COCA Update
Education Report
Membership Report
Entertainment Report
2018 Suppliers’ Guide
Index to Advertisers
Construction North 2018 - Intro
Construction North 2018 - cover1
Construction North 2018 - cover2
Construction North 2018 - 3
Construction North 2018 - 4
Construction North 2018 - 5
Construction North 2018 - 6
Construction North 2018 - Executive Director’s Report
Construction North 2018 - 8
Construction North 2018 - President’s Report
Construction North 2018 - Northern Ontario Project Attracts International Attention
Construction North 2018 - 11
Construction North 2018 - 70 Years and Counting
Construction North 2018 - 13
Construction North 2018 - 14
Construction North 2018 - Arbitrator Supports Employer in Medical Marijuana Case
Construction North 2018 - Hiring a Lawyer – Choosing a Tombstone
Construction North 2018 - NOCA Celebrates 70 Years
Construction North 2018 - Not Just for Guys: Industry Wants to See More Women Enter Construction
Construction North 2018 - 19
Construction North 2018 - COCA Update
Construction North 2018 - 21
Construction North 2018 - Education Report
Construction North 2018 - Membership Report
Construction North 2018 - Entertainment Report
Construction North 2018 - 25
Construction North 2018 - 26
Construction North 2018 - 27
Construction North 2018 - 2018 Suppliers’ Guide
Construction North 2018 - Index to Advertisers
Construction North 2018 - 30
Construction North 2018 - cover3
Construction North 2018 - cover4
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