Marijuana in the Workplace: Legalization and Medicinal Cannabis

Transcription

1 Marijuana in the Workplace: Legalization and Medicinal Cannabis Sea to Sky Conference 2017 Matthew R. Letson August 9, 2017

2 CANNABIS ACT Bill C-45 Not yet passed Marijuana still illegal Permits possession up to 30g for 18yo+ Ticket for 31g-50g with $200 fine Licenses vendors and producers Leaves much of implementation to provinces Not aware of any Province that has announced regulation

3 CANNABIS ACT Discussion Paper Marijuana impairs a number of brain functions needed for safe driving such as coordination, judgement of distances, reaction time, and ability to pay attention. Marijuana is second to alcohol as the drug most frequently found among drivers involved in crashes and drivers charged with impaired driving, and among seriously injured drivers. Marijuana and alcohol are also among the most frequentlyoccurring alcohol-drug combinations. In contrast to alcohol, there is currently no roadside "breathalyzer"-type test to detect impairment with marijuana. However, roadside oral fluid tests are being used in other jurisdictions that can detect the presence of marijuana in oral fluid which can be suggestive of recent use. This is an active area of Canadian and international research. Toward the Legalization, Regulation and Restriction of Access to Marijuana - Discussion Paper

4 CANNABIS ACT Task Force June 2016 Federal Gov t appointed 9 member task force Task Force on Cannabis Legalization and Regulation Chair Anne McLellan (former Justice Minister) Final Report November Approach: a public health approach to reduce harm and promote health Task Force dealt with marijuana use/impairment in the workplace Special concern for safety-sensitive workplaces Noted limitations on random drug testing Recognized need for accommodation of disabilities Nothing incorporated into Bill C-45

5 CANNABIS ACT Bill C-45 What does it mean for Employers? Treat much like alcohol for 30g or less 30g to 50g special problem limitations on testing Implications for Health and Safety Impairment vs presence Case for marijuana addiction and accommodation Medical marijuana use at work

6 CANNABIS ACT Task Force Advice to Ministers The Task Force recommends that the federal government: Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies

7 CANNABIS ACT Task Force Problems with marijuana testing Cannabis-impaired driving and work performance; THC impairs driving performance, the level of THC in bodily fluids does not reliably indicate the degree of impairment; No equivalent to Blood Alcohol Concentration (BAC); Problem of chronic, heavy users of cannabis; testing tools: oral fluid screening devices are the most advanced today (and have the added advantage of signalling recent use);

8 CANNABIS ACT Employment Problems Problems with marijuana use after legalization Prohibition of use/impairment at work testing problems Policies Proxies for impairment Multiple methods of ingestion not like finding the vodka bottle in the trunk; Employees who travel to the US for work may be banned from entry even if legal in Canada; Addiction and human rights

9 Canadian Model In 1999, Construction Owners Association of Alberta developed model policy Updated 4 times since then (most recent 2014) Available at:

10 Canadian Model

11 Canadian Model

12 Proposed US Federal Guidelines Mandatory Guidelines for Federal Workplace Drug Testing Programs by the U.S. Substance Abuse and Mental Health Services Administration Currently proposed amendments to 1988 guidelines Oral testing standard same as Canadian Standard for Marijuana 4ng/ml initial 2ng/ml confirmatory

13 Canadian Model

14 Canadian Model Upheld in: Fluor Constructors Canada Ltd. and I.B.E.W., Loc. 424 (Chornyj) (Re), (2001) 100 LAC (4 th ) 391 Clearwater Fabrication GP Inc. v. United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 488 (Johnston Grievance), (2013) 234 L.A.C. (4th) 132 Good Construction Industry standard In unionized context, will be largely respected IF incorporated by Employers and Unions into the Collective Agreement or otherwise agreed to by both Must be applied reasonably No cases dealing with non-union context No reason to think it would not be considered applicable if incorporated by non-union employers into the terms of employment Random testing and other aspects MAY be at odds with the Human Rights Act

15 Status of Drug Testing Tolko Industries Ltd. v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-425, 2017 CanLII (BC LA) E ee operating heavy equipment involved in serious, preventable accident causing sig. damage E ee dismissed for cause E ee testing positive for marijuana metabolites 241ng/ml in urine over 200ng/ml above Canadian Model (notraised here) Union argued E ers justification argument should be summarily dismissed as evidence of metabolites in urine does not demonstrate impairment Arbitrator dismissed Union s argument, ordering full hearing with additional evidence Not satisfied that presence of metabolites could not be used as corroborative evidence of impairmentin lightof serious accident Implication: Cannot safely rely on blood/saliva/urine testing alone

16 Medical Cannabis Calgary (City) v CUPE, Local 37, 2015 CanLII In 2009, Employee prescribed medical marijuana for chronic degenerative neck problem Informed 2 supervisors of prescription, and allowed to keep working in safety sensitive position using heavy equipment for over a year Manager later learned of prescription and Employee was removed from safety-sensitive position pending investigation E er ordered an IME that showed he could work, but E er perceived there was a lingering drug dependence issue that was unresolved E er tried to have Alberta Transportation remove the E ee s Class 3 license Tribunal found that the drug dependence issue was artificially created by E er E er failed to provide any evidence of actual impairment on the job E ee stated that he consumed only a small amount each night to ease pain at night, and never consumed during the day

17 Medical Cannabis French v Selkin Logging, 2015 BCHRT 101 E ee operating heaving logging equipment was terminated because he refused to cease smoking marijuana on the job E ee had painful cancer which he was self-medicating with marijuana (splitting 6-8 joints per day with a co-worker) E ee did NOT have a prescription for medical marijuana, but his oncologist was helping him get one and was aware of the drug use to manage pain E er had a zero-tolerance policy, but allowed weeks to go by between first reports of on the job marijuana use and confronting E ee Tribunal found that termination for use of marijuana to control pain (whether prescription or not) was prima facie discrimination Policy was justified and request to allow E ee to smoke marijuana at work as undue hardship Tribunal acknowledged that, in the right case, an E er may have to tolerate some medical marijuana consumption on the job as a component of accommodation, so long as it was not impairing

18 Medical Cannabis IBEW, Local 1620 v Lower Churchill Transmission Construction Emp s Assn. Inc., [2016] N.L.L.A.A. No. 5 E ee worked building transmission lines for a large hydro-electric project E ee resided at work camp for 21 days at a time E ee had a valid prescription for medical marijuana and purchased his supply legally used for back pain and axiety E ee did not disclose prescription at the time of hiring (afraid he d not be hired), and took steps to hid his marijuana supply outside of the work camp as there was a zero-tolerance policy

19 Medical Cannabis IBEW, Local 1620 v Lower Churchill Transmission Construction Emp s Assn. Inc., [2016] N.L.L.A.A. No. 5 No evidence E ee ever impaired at work E ee dismissed as a result of his failure to disclose his prescription and his taking active steps to conceal Grievance Denied due to E ee deception and possession at work site in violation of zero tolerance policy Cause for discipline upheld, but penalty referred back to arbitrator: IBEW, Local Union 1620 v. Lower Churchill Transmission Construction Employers' Association Inc. and Valard Construction LP, 2016 CanLII (NLTD) Questions: What if E ee had been upfront about use could E er have refused him the position given his prescription? United Steel Workers Local 7656 v Mosaic Potash Colonsay ULC (Danyluk Grievance), [2016] S.L.A.A. No. 4 Could E er maintain zero-tolerance policy for possession at work camp if he had disclosed his prescription?

20 Medical Cannabis Medical Marijuana Canadian Model Must have a prescription Regardless must have no impairing effect on E ee Notification of side-effects Stigma of smoking up at work Does s.3.2 work for smoked medical cannabis?

21 Random Testing Significant difference between unionized and non-unionized workplaces Unionized workplace Extraordinary circumstances history of drug abuse in workplace safety sensitive workplace Post-incident testing more justifiable Non-unionized workplace No explicit restriction on random/post-incident testing Main consideration in human rights (addiction and medical marijuana) Human Rights Most testing is prima facie discriminatory

22 Human Rights Prohibit discrimination for physical and mental disability Addiction is considered a physical and/or mental disability Medical Cannabis users also protected Addiction/Medical Cannabis use cannot be a factor in discipline/dismissal at all unless it is justified as a bona fide occupational requirement Employers must accommodate to the point of undue hardship Some Factors: Safety sensitive position Evidence of impairment at work Nature of employer s workplace Economic cost of accommodation (ie: cost of treatment programs, etc.)

23 Human Rights Brooks v. Martin-Brower of Canada Co., [2008] BCHRTD No. 49 Employee caught smoking marijuana Employee admitted addiction, and referred by employer for counselling Signed an agreement that he would abstain from drug use and attend outpatient treatment Employee later refused to sign up for expensive outpatient program and refused alternative proposed by employer HR Complaint dismissed as he failed to comply with accommodation

24 Human Rights Stewart v Elk Valley Coal Corporation, 2017 SCC 30 IMPORTANT NEW DECISION E er policy required employee to come forward without consequence if suffering drugaddiction and E er would provide treatment if reported before any incident Policy provided near automatic termination if incident occurs and no prior self reporting Post-accident, E ee who later admitted to crack-cocaine use off-duty, was terminated because he did not come forward Alberta Human Rights Commission dismissed complaint because E ee in violation of mandatory disclosure policy E ee testified that he did not perceive he had an addiction until after accident BUT SCC ruled that was irrelevant

25 THANK YOU!!