CSR | August 2018 | News
Unknown level of residual impairment too much of a risk
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use. He accepted the employer's
evidence that the inability to ac-
curately measure the extent of
daily impairment due to a lack
of available monitoring was a
legitimate concern when em-
ploying a person taking medical
cannabis working in any safety
sensitive position. The arbitrator
said if risk is to be managed, an
employer must be able to mea-
sure the impact of that cannabis
on the worker's performance.
The employer did not have to
provide "conclusive evidence of
workplace impairment about
the Grievor;" that would be an
unrealistic and unachievable
burden on the employer.
The lack of reasonable ability
to measure impairment (with
blood and urine tests not mea-
suring current impairment),
plus the lack of specially trained
individuals who could observe
and measure impairment of
judgment, motor skills and men-
tal capacity presented a risk of
harm that could not be readily
mitigated.
Based on all the evidence, ex-
pert and otherwise, the arbitra-
tor was satisfied that:
• 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
four hours after ingestion.
Impairment can sometimes
exist for up to 24 hours after
use.
• 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.
• 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.
The arbitrator was satisfied
that undue hardship in terms of
unacceptable increased safety
risk would result to the employer
if it put the worker to work with
his authorized medical cannabis
use.
This is a very significant deci-
sion. There are not many arbi-
tration awards that address what
can be appropriately considered
a "safety sensitive" position. Fur-
ther, the award deals with the im-
portant issue relating to accom-
modation and medical cannabis
in the context of a safety sensitive
position. The arbitrator's recog-
nition of residual impairment
for up to 24 hours from medical
cannabis use allowed a finding of
undue hardship.
For more information see:
• Lower Churchill Transmission
Construction Employers'
Association and IBEW, Local
1620 (April 30, 2018), John F.
Roil, Q.C. – Arb. (N.L. Arb.).
Brian Johnston, Q.C., is a part-
ner with Stewart McKelvey in
Halifax. He can be reached at
(902) 420-3374 or bjohnston@
stewartmckelvey.com.
Medical marijuana < pg. 5
