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This is the key to dealing with addiction and a host of employee issues

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.

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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
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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.

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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.

 

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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.

 

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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.

 

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Returning a worker to Work after Alcohol or Drug Infraction

20170710_114319One day in a shopping mall I overheard a conversation between two young ladies. One was telling the other that she had just failed her driving test because she did not completely stop at a stop sign. Apparently, the examiner immediately cancelled the rest of the test and told her she had failed because of that one action. She told her friend how shocked and hurt she was as she felt she performed pretty well during the other parts of the driving test. She was furious at the examiner for not passing her. She claimed it was all his fault that she didn’t pass.

I thought about how this story relates to my role in the whole return-to-duty process. The driving examiner was preventing unsafe drivers from getting their license. The young woman thought that since she only went through one stop sign and didn’t hurt anyone, she should be forgiven. She reasoned that lots of people go through stop signs without harm. The difference was she was with an examiner trained to spot mistakes. If she was unable to refrain from going through a stop sign with an examiner in the car, what kind of driver would she be when she was by herself? That is basically how I look at return-to-duty as well. If an employee is not going to make the effort to help themselves while they are out of work and being monitored, why would they make any effort to stay well when they are returned to their job functions?

The answer is that they won’t.

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Alcohol and Drug Testing are not Illegal if done within a policy. Do they have a policy?

The recent arrest of a Sunwing Airlines pilot in Calgary is spurring questions about Canadian laws around alcohol testing for pilots and crew—protocols which appear to be unclear to airlines themselves, Global News has learned.

On Dec. 31, the pilot tested at three times over the legal alcohol limit two hours after he was found unconscious in the cockpit.

READ MORE: Calgary police charge Sunwing Airlines pilot with being drunk before takeoff

Sunwing spokesperson Jacqueline Grossman originally suggested it is “illegal in Canada to do mandatory full or random drug or alcohol testing on employees” in an email to Global News Monday night.

But the federal government says there is no specific provision in the Canada Labour Code addressing alcohol or drug testing in the workplace.

“This is the first such incident that has occurred in our 11-year history as an airline,” Grossman said in an updated statement Tuesday.

“As a federally regulated airline with unionized workers, our initial legal advice has been that we are not in a position to enforce drug or alcohol testing for our workers. That said, it is a complex legal issue which requires further review.”

Watch below: Miroslav Gronych, 37, will appear in court Jan. 5 after police say his blood alcohol was three times the legal limit. Reid Fiest reports.

Miroslav Gronych, a Slovakian national in Canada on a work visa, was escorted from the aircraft after the gate crew and the co-pilot noticed odd behaviour and alerted police. He was charged with having care and control of an aircraft while impaired and having care and control of an aircraft while having a blood alcohol level over .08 (or exceeding 80 mgs of alcohol per 100mL of blood).

Calgary police said he was released on $1,000 bail and had to surrender his passport. He is also suspended from flying any other aircraft in Canada.

Dr. Gregg Bendrick, an aerospace medicine specialist who also works as a senior aviation medical examiner with the Federal Aviation Administration (FAA), said Monday there is a clear drug and alcohol testing program for commercial airline pilots in the U.S., which includes a random testing component. He said anyone identified as impaired would then be evaluated to see if they suffer from alcoholism.

READ MORE: Sunwing Airlines on drunk pilot arrested in Calgary – all foreign pilots trained, approved

He said the reading of “three times the legal limit” reported by Calgary police would mean a reading of about 2.4 mgs of alcohol per 100mL of blood, raising the possibility of an addiction.

Grossman said Gronych had “no previous violations of this nature in his file” and that he’s been suspended pending a Jan. 5 court date.

Grossman originally referred Global News to the Canadian Human Rights Act for details on how a “non-legislated drug or alcohol testing program in a private sector company would be challenged.”

But Employment and Social Development Canada said random testing is legal.

“Random testing of employees in safety-sensitive positions (defined as those in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment) has been determined to be permissible in a number of circumstances, as long as employees are notified that alcohol testing is a condition of employment,” spokesperson Amélie Maisonneuve said in an email sent Tuesday to Global News.

“Currently, there is no specific provision in the Canada Labour Code addressing drug and alcohol testing in the workplace.”

She then referred Global News to the Canadian Human Rights Commission on their Policy on Alcohol and Drug Testing, which reads, in part:

If testing is part of a broader program of medical assessment, monitoring and support, employers can test for alcohol in any of the following situations:

  • on a random basis, for employees who hold safety-sensitive positions;
  • for “reasonable cause,” where an employee reports for work in an unfit state and there is evidence of substance abuse;
  • after a significant incident or accident has occurred and there is evidence that an employee’s act or omission may have contributed to the incident or accident; or
  • following treatment for alcohol abuse, or disclosure of a current alcohol dependency or abuse

Transport Canada said it is “currently reviewing the pilot’s records and Sunwing Airlines’ procedures and protocols,” however, said the airline is responsible for any disciplinary action against the pilot. A spokesperson said alcohol testing was outside the realm of Transport Canada’s involvement in the incident.

“Air carriers are responsible for their own human resources policies, including random drug and alcohol testing,” spokesperson Natasha Gauthier said in an email to Global News.

Air Canada and the Air Canada Pilots Association did not respond to Global News requests for comment on their policies.

A WestJet spokesperson said the company has an “alcohol and drug policy that provides for testing in a manner that is consistent with Canadian law.” WestJet declined to comment on the specifics of the policy, including whether pilots are aware of alcohol testing and whether it is random.

With files from Reid Fiest

© 2017 Global News, a division of Corus Entertainment Inc.

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