MEDICAL MARIJUANA FOUND TO BE UNDUE HARDSHIP IN SAFETY SENSITIVE POSITIONS

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: CLIENT UPDATE: MEDICAL MARIJUANA FOUND TO BE UNDUE HARDSHIP IN SAFETY SENSITIVE POSITIONS – THE PROBLEM OF RESIDUAL IMPAIRMENT

May 1, 2018

Brian G. Johnston, QC

The Arbitrator in Lower Churchill Transmission Construction Employers’ Association and IBEW, Local 1620 dismissed a grievance on April 30, 2018 concluding:

The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the jobsite. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.

The Grievor suffered from osteoarthritis and Crohn’s Disease. Over the years, he unsuccessfully attempted conventional medication and therapies. Subsequently, he was authorized to use medical cannabis at a THC level of less than 20%; he consumed 1.5 grams inhaled by vaporization each evening and reported relief from his chronic pain and no impairment the following morning.

He sought employment as a Utility Worker (a labourer position) and later as an Assembler on the Lower Churchill Project. He was not offered either, after his medical cannabis authorization became known. The Grievor’s authorizing physician had made her standard recommendation for patients to avoid certain activities such as driving for 4 hours after inhalation or 6 hours after oral ingestion. She did not feel that the level of impairment remaining on the day after he used cannabis would affect job performance.

The Union argued that the Grievor was qualified and experienced and had worked on the Project previously for other employers without conditions associated with his medical cannabis treatment. Further, the Union said there was a failure to accommodate and individually assess the Grievor’s ability to perform work on the Project.

The Employer responded by saying that the positions sought were safety sensitive and, therefore, it had to determine whether the Grievor was able to work without impairment. This was part of the Employer’s legal obligation to ensure a safe workplace. The Employer said that impairment was an expected consequence of cannabis use and that measuring the length of impairment was quite difficult. The Grievor had been individually assessed but the safety risks added to the workplace by the Grievor’s medical cannabis use brought the Employer to the point of undue hardship. The fact that he had worked on the Project previously for another employer did not demonstrate evidence of safe work; rather, he may simply have been fortunate that an incident did not occur. The Employer’s bottom line was that undue hardship existed in the form of increased workplace safety risk and the Employer could not employ the Grievor in a safety sensitive position while he was using medical cannabis every evening.

The Arbitrator was satisfied that both the Utility Person and Assembler jobs were safety sensitive. Although both required a relatively low level of training and expertise, they did involve working sometimes with motorized equipment in close proximity to larger operating pieces of equipment in the field and in weather conditions that were often demanding. The Arbitrator acknowledged that not every job within the Project was necessarily safety sensitive. Although the Utility Person job did not require as much skill, dexterity or mental focus as some other roles, such as heavy equipment operator, it still demanded the worker’s undivided focus and high requirement for mental alertness. Otherwise, injury to oneself or fellow employees would inevitably occur.

As for the duty to accommodate, the Arbitrator recognized that some assumption of risk by the Employer is acceptable within the accommodation process. Accommodation to the point of undue hardship requires an individualized assessment as opposed to a blanket determination. In a unionized environment, both the union and the employee, along with the employer, must be involved and all options must be considered. The Employer was entitled to have reasonable medical information sufficient to determine how, if at all, the Grievor could safely work.

The Arbitrator was satisfied that THC is known to effect judgment and motor skills, and that THC can, and does, cause impairment. The Arbitrator cited Health Canada’s advice to healthcare professionals that depending on the dose, impairment from THC can last more than 24 hours after last use due to the long half-life of THC. Further, because of that long half-life, drug test screening can be positive for weeks after the last cannabis use. The Arbitrator also noted that the College of Family Physicians of Canada in 2014 similarly cited Health Canada’s warning that the ability to drive or perform activities requiring alertness may be impaired up to 24 hours following a single consumption.

The Arbitrator said that he was not comfortable with the authorizing physician’s conclusion that the Grievor would be able to work safely after only 4 hours from use. He accepted the Employer’s evidence that the inability to accurately measure the extent of daily impairment due to a lack of available monitoring was a legitimate concern when employing 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 measure 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 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.

Based on all the evidence, expert and otherwise, the Arbitrator was satisfied:

1. 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 4 hours after ingestion. Impairment can sometimes exist for up to 24 hours after use.

2. 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.

2 [sic]. 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 Grievor to work with his authorized medical cannabis use.

This is a very significant decision. There are not many arbitration awards that address what can be appropriately considered a “safety sensitive” position. Further, the award deals with the important issue relating to accommodation and medical cannabis in the context of a safety sensitive position. The arbitrator’s recognition of residual impairment for up to 24 hours from medical cannabis use allowed a finding of undue hardship.


This update is intended for general information only. If you have questions about the above information, please contact Brian G. Johnston, QC, or another member of our labour and employment group.

DOT “Medical Marijuana” Notice

DOT “Medical Marijuana” Notice

DOT Office of Drug and Alcohol Policy and Compliance Notice

Recently, the Department of Justice (DOJ) issued guidelines for Federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.” http://www.justice.gov/opa/documents/medical-marijuana.pdf

We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.

We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.

The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

§ 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:
(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

We want to assure the traveling public that our transportation system is the safest it can possibly be.

Jim L. Swart
Director
Office of the Secretary of Transportation
Office of Drug and Alcohol
Policy and Compliance
Department of Transportation
October 22, 2009

Updated: Monday, October 30, 2017

Problems, Ignore, Repeat, Problems again

When managers ask me how to help one of their employees, I usually ask them some questions to find out what the problem is. I have seen the same patterns repeated over and over again in many workplaces trying to deal with an addicted employee. The employee gets in trouble, he or she gets a talking to or maybe even a letter, the addict promises to be good, everyone forgets the issue and then the addict gets in trouble again. The problem here is that with no serious action, there is no accountability and therefore there are no results. Without boundaries, the problem will reoccur.

The workplace needs a procedure that can be used to find solutions that are legal, ethical and helpful but primarily geared to safety. If substance abuse and addiction are looked at from the standpoint of safety, then a whole new pathway opens up. We then see that untreated addiction can be a serious risk that must be mitigated in some way. Our future action will stem from this viewpoint, with safety as the focus.

Keeping the workplace safe has positive implications for the whole of society. If a suffering person is helped before resources in the community are involved, then that is a big savings. For instance, health care, social services and the justice system can be tied up with problems that are really addiction in disguise. If the workplace has a practical procedure for dealing with substance abuse, then they are in a position to help. I have seen many people recover because their workplace was using a procedure to deal with substance abuse issues.

Assessing Employees for Addiction

 

I was in Cuba for a week and did not update my blog. Cubans keep their cars running for 50-60 years as you can tell by this picture. The guy was using this old car as a taxi.  They are very ingenious people to make do with what they have.  I will talk about my trip sometime later but back to the workplace…………………………….

In 1994, new safety regulations came into effect that govern the North American transportation industry. The main reason for the new rules was safety; too many people were being killed and injured by incidents involving addicts and substance abusers. Ever since the regulations were implemented, it has been my job to undertake addiction assessments on employees who have found themselves contravening company policy. As a Substance Abuse Professional (SAP), I assess the employee then make recommendations based on the addiction assessment to move the employee forward if there are addiction issues.

I have found this work to be very interesting and rewarding. Some of the people I assessed were addicts, and some were not. Some needed help, and some did not. The types of people I have dealt with have ranged from the sensible and cooperative to the loud and hostile. Many of these employees had not previously faced limits regarding their alcohol and drug usage. They either never heard the word “no” or they were able to get their way through manipulation. I have dealt with habitual behaviour that hurts the person and has safety implications for themselves and others.

Generally, the ways to help individuals with addiction are evolving and, hopefully, advancing. Interventions with addicts are becoming a common practice. The intervention is supposed to break through the addict’s defenses so they see themselves as they really are and realize that they do need help. Once they do see this reality, they can accept assistance. The ways that interventions are carried out continue to be modified, but the core dynamic is always the same. Denial is broken so that the addict can make the decision to change. Action comes out of that decision. Addicts in the workplace are no different.

Every recovered person that I have ever seen or made contact with has changed, not because things were going well, but because things were getting bad. Something had to happen that pushed them into making the decision to try to change. In my thirty-two-plus years around the addiction recovery world, I don’t recall ever hearing of somebody who had a serious problem with alcohol or drugs deciding to change for the heck of it. It does not happen that way.

For the working addict, as for all of us, the ability to make an income is very important. (Most addicts are working. Go to http://www.samhsa.gov/workplace/toolkit/assess-workplace for detailed statistics.) Consequently, the workplace, if managed correctly, can have a tremendous influence upon a person with a drinking or drug problem. When companies set firm boundaries around alcohol and drug usage in the workplace, the procedure helps addicted employees see reality and they are given the opportunity to change. They understand what they are doing is too dangerous and they also risk losing their job if they keep it up. I have been amazed to see how effective this environment can be in helping working addicts tackle their addiction.

Why Can’t I Stay Sober (part 2)

Maybe you are hanging with the wrong people. 

It could be your environment is bad for your sobriety. Are you hanging around bars for example? There is an old saying…”with whom you assemble you will resemble.” I believe that this is true.

If you want sobriety you have to find people that have it and learn how they got it. Same as making a million dollars, you want to find people that have done this if that is what you want. Sobriety is the same.  Prioritize that you have a problem and find people that have solved the problem.  There you go.

 

Why Can’t I Stay Sober? (Part 1)

 

 

 

The very first part of staying sober is admitting that you have a problem. If you can’t do that you are always in danger of “picking up” as they say. A point in time will come along where you play with the thought that you can still drink and if you go for it your resolve is just weakened if not just all gone.

Many people fool themselves that way. How do you figure out if you have a problem? The 20 Questions is all over the net. Take them and see but first ask yourself why would would even ask. Most people either drink or don’t and don’t worry that they may have a problem.

Another way would be to put yourself in a room with people who used to have a problem but don’t know. See what they say. There are lots of groups available, AA, Smart Recovery, educational sessions at treatment centres.  Look up Youtube videos of speakers on addiction.

First see if you have a problem then you can move on from there but you have to find out and be truthful with yourself. Either you do or don’t and chances are you do. If you do have a problem you can do something about it. Stay tuned. …….Day before New Years, good time to find out too!

Is Addiction a Risk in the Workplace?

Book is finally out

I was talking to a human resource manager a few weeks ago about an employee who worked in his company. This employee was driving a company car and there had been numerous complaints from other employees that this man had alcohol on his breath at various times throughout the day. The HR manager said that the employee was almost ready to admit that he had a problem and that they could finally do something.

I asked, “What if the employee killed a child in a motor vehicle accident before he admitted he needed help and you had prior knowledge of a this serious safety situation?” “I see what you mean,” he said and wanted some advice from me.” I suggested that he should take the employee out of that car immediately until he could get a substance abuse professional (SAP) to assess him for addiction and to see what the SAP recommended. The SAP will either recommend treatment or education depending on the nature and seriousness of the problem. The company will then have a written treatment plan and documentation to promote further action.

The manager was concerned with human rights of the employee. I was concerned for the child or others that could be killed or maimed if nothing was done while people were waiting for this man to get help on his own. My primary concern as a Substance Abuse Professional is the safety of the public and the other employees working with an addicted employee. The employee and his or her rights are secondary to the safety of others. The idea is to address the safety concerns first.

What constitutes reasonable cause to ask an employee to undertake a SAP assessment for addiction. What sort of things should a manager look for while observing or hearing about this employee?

· Alcohol on the breath. (That one is pretty obvious and serious)
· Drunk driving or other charges related to alcohol or drugs.
· There are physiological and physical symptoms one can learn and be attentive to.
· Erratic work performance, especially, from someone who was very good at their job. (Look for changes)
· Absenteeism is especially useful clue that the person has a problem with something.
· Rumours are useful. They can help you to establish a pattern if there are enough of them.
· Unreasonable excuses for being away or not completing tasks on time.
· Moodiness and problems with other employees.
(I have a checklist on my site called Checklist for Managers that lists many subtle clues)

How do you know if it is addiction?  Actually, you really do not know if it is an addiction. You would not know that until the person is professionally assessed. You may suspect but unless you have some sort of specialized knowledge and training you would not be able to diagnose this your self. Besides, you do not want or need all of that personal information that an addiction assessment gains, nor would the employee want to give it to you. That personal information needed for the assessment must stay with a third party for confidentiality reasons. That is another reason to us a SAP.

If you think that something is not right, there is a policy violation or that a person has an alcohol or drug problem, you should be documenting the behaviour. You are trying to build a case that something is wrong and it would be reasonable to assume that it may be addiction. To correct policy violations or improve employee behaviour is one of your functions. That is your job. That is solution-focussed intervention. Whether it is addiction or not you will have to deal with it and take steps to correct it. The SAP interview will move you to a solution. Either the person accepts the help or they do not. Are you going to let someone work with the smell of alcohol or break other company rules without taking action? It is not inhumane to ask people to be responsible for their behaviour, especially, when that behaviour has the potential to harm the employee or others.

In my seminars I hear of some really horrific cases that employees and mangers appear to be putting up with that in my opinion could be solved with some action. My on-site seminar includes a slide that says,” Addicted people do not get help because they see the light but because they feel the heat on their ___. “ In the 32 years that I have been in the addiction business, I have found that to be true especially when the workplace is actively trying to help. Everyone that I have ever personally known or heard about who has recovered from addiction, has done so only when the chips were down never when they were on a roll. Something happened in their life to make them see that there is a problem.

The workplace is uniquely able to influence the employee in such a way as to get them to look at himself or herself long enough to see that there is a problem. The choice is then theirs to do something about it.

 

Everyone Must Do Their Share

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We can’t rely on one person to carry the weight and responsibility of making the workplace safe. It won’t work. If supervisors do not understand the policy and the need for safety they could easily let someone go on who has the smell of alcohol on them for example. They could believe a dumb excuse that it is aftershave or that it was only two beer the night before. They could refuse to alcohol test this person thinking that it will get better down the road. They could neglect to carry out the un-announced alcohol tests that have been recommended by the SAP.

Getting used to enabling is easy. People like you because you don’t challenge them. They like you because you are a people pleaser. They don’t respect you because they think that you are not worthy of respect because you are not doing your job. They think you are easily manipulated. Go on about your day and ignore the warning signs of addiction problems and pray to God this person does not cause an accident before you retire. I have known people like this. They are not serving anyone but themselves.

Unfortunately “it all comes out in the wash” as my father used to say down the road. Someone is going to be accountable for incompetence and poor supervision if there is an accident and then it becomes not pretty. So much easier just to do your job and let the chips fall as they may and you may be helping someone. One thing you will be keeping your workplace safe and following due diligence procedures.

 

Why Would You Want Your Employee to Have a Substance Abuse Assessment?

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Whay bother with an assessment? Can’t you just ask the employee what they want?

No! You are looking to have some simple questions answered that you probably can’t answer yourself. If these simple questions are not answered then over the long term the employee could get worse, allot worse. That is bad for safety and also for the person. If things go really bad they could be very bad for you. Accident maybe?

You want to know how bad the problem is? That is important because that has to be identified to make a treatment plan.

What is the appropriate treatment? Many bosses think that a 28 day rehab will solve all the employee’s problems but how do you know and is that reasonable?  What if it is not?  A friend of mine who used to work in a mental hospital said “I had a whole wing of rehab grads.”

Is the person following the treatment plan? This is important because if they are that points to someone who will be safe in the workplace, if they are not then that would be a negative for sure.

Are they stable enough to return to work with a plan that they are following? Does alcohol or drug testing need to be invoked for safety and deterrence?

Yes, these questions will be answered with an assessment, safety will be addressed and hopefully an employee will be restored.

 

Ralph Waldo Emerson

“Men imagine that they communicate their virtue or vice only by overt actions, and do not see that virtue or vice emit a breath at every moment.”

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I got a call from a union representative to call a guy. He never got back to me with the name but the next day a man called me 5 times and left two messages within 45 minutes and the messages said he failed a drug test and to call him right away. It sounded urgent and five calls in a short period seemed excessive. I called within 60 minutes of the last message he left but he there was no answer so I left a message. I imagine that it was the guy referred to by the union man. I found that strange to call so many times in a short period of time, leave two messages and not be there when I call.  Maybe there was an emergency……….?

When the union man called me he asked me if I could help the union member. I said that I could but I would need cooperation.  It is not a one sided thing. I can’t make someone change unless they want to change.

What I mean by this small story that seems to happen allot in one way or another is that every action shows something as Emerson expounds upon in his essay.  Tell me one thing and do another. Don’t show up or be late. It all says something.  I would suggest everone Read Emerson.