As debate swirls around the accuracy of testing methods for marijuana impairment, expect to see more cases dealing with workers using the drug heading to the courts.
The Supreme Court of Newfoundland and Labrador recently upheld a decision by an arbitrator that an employer was justified in refusing to put a worker in a safety-sensitive position because it was difficult to measure active impairment from his use of medical cannabis.
The case involved the International Brotherhood of Electrical Workers, Local 1620, versus Lower Churchill Transmission Construction Employers’ Association Inc.
The grievor took medical cannabis, as prescribed by a physician, for chronic pain from Crohn’s Disease and osteoarthritis. The prescribing doctor had “no concerns” for the worker’s daytime function on the job because the worker was taking the marijuana at night, Deanah Shelly, employer counsel, Mathews Dinsdale & Clark, told a seminar recently at the 2019 Health and Safety Conference in downtown Toronto.
In other medical cannabis cases, arbitration hearings and the courts have ruled in favour of grievors.
“The medical evidence is quite important,” Shelly said, noting a comprehensive medical report covering a grievor’s need for cannabis and the length of impairing effects have weight in an arbitrator’s decision.
But Shelly said there is currently no way for employers or medical professionals to accurately measure “residual impairment” during a workday after evening cannabis use. “This is the crux of the medical marijuana cannabis issue right now.”
“The key takeaway…the Human Rights Code still requires that employees be accommodated for disability,” Shelly said.
Marijuana use on the job was among a spate of recent health and safety cases in Canada discussed by Shelly and other panellists at the seminar, which covered major case law and legislative developments.
On the subject of fines for health and safety infractions, a ruling in the case of R versus Carrier Forest Products Ltd. showed that the amount of a fine to a corporation found or pleading guilty to health and safety legislation may include factors such as the company’s ability to pay and the fine’s impact on company operations, Shaheen Hirani, legal counsel, United Steelworkers, told the seminar audience.
The Saskatchewan Court of Queen’s Bench upheld a fine of $87,500 against Carrier for a safety infraction — failing to provide a safeguard where a worker may contact a dangerous moving part causing his/her death. The court’s view was that fines “for the largest corporations and the worst offenders be large enough so it is more than the cost of doing business,” said Hirani.
But courts don’t always deem that a fine is enough of a deterrent, she said. A court ruled that increasing the fines to a Belleville roofing contractor for three, repeated fall-protection infractions did not deter an owner from a fourth fall-protection infraction, so its decision was to give the owner seven days jail time, even though there was no accident or injury outcome.
Of 130,000 orders/requirements issued to 41,000 workplaces by the Ontario Ministry of Labour’s (MOL’s) occupational health and safety inspectors from April 2018 to April 2019, “way more tickets were written in the construction sector than any other sector we cover,” said Ronald Landry, provincial co-ordinator and manager, industrial health and safety program, MOL.
Workplace violence and harassment led the top 10 health and safety issues and violations in 2018. Fall-protection infractions ranked second and inadequate personal protective equipment came third. “They are fairly common areas of focus that we try to raise awareness of,” said Landry.
He said the MOL plans several inspection initiatives in the province, including one in the construction sector next January to March on personal protective equipment and another in the industrial sector on machine guarding.
The conference was presented by Lancaster House in association with the University of Toronto, the Centre for Industrial Relations and Human Resources and the Institute for Work & Health.