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The Georgia Straight - - NEWS - By

TChar­lie Smith

he le­gal­iza­tion of cannabis has some em­ploy­ers won­der­ing about their pow­ers to dis­ci­pline work­ers who are high on the job. This is­sue be­comes more com­pli­cated when weed is be­ing used for medic­i­nal rea­sons and the em­ployee is oper­at­ing heavy equip­ment.

Two 2015 le­gal de­ci­sions—one at the B.C. Hu­man Rights Tri­bunal and the other in­volv­ing a Cal­gary city em­ployee’s griev­ance—of­fer some guid­ance.

In the first case, B.C. Hu­man Rights Tri­bunal mem­ber Robert Blasina ruled that a north­west­ern B.C. log­ging con­trac­tor did not vi­o­late the provin­cial hu­man-rights code when it ter­mi­nated a can­cer sur­vivor, John French, who smoked cannabis on the job to man­age his pain.

French did not have a card from Health Canada des­ig­nat­ing him as a medic­i­nal-cannabis user, though his doc­tors con­doned his con­sump­tion as long as it worked. Ac­cord­ing to the rul­ing, French in­sisted that he was never high on the job, even though he would smoke a joint in the morn­ing, in the mid­dle of the day, in the evening, and be­fore go­ing to sleep “if there’s pain”.

He was dis­missed three weeks af­ter he “struck a moose on the road while driv­ing com­pany truck to work”, ac­cord­ing to Blasina’s de­ci­sion.

Selkin Log­ging claimed that work­place safety trumped any duty to ac­com­mo­date his cannabis use. It main­tained that its pol­icy of no drugs in the work­place was per­mis­si­ble un­der B.C.’S Oc­cu­pa­tional Health and Safety Reg­u­la­tion.

Even though French’s com­plaint was dis­missed, Blasina noted that the Oc­cu­pa­tional Health and Safety Reg­u­la­tion “does not pro­vide an ab­so­lute pro­hi­bi­tion against sub­stance use at the work­place”.

Rather, it con­cerns whether “the per­son’s abil­ity to work is af­fected by al­co­hol, a drug or other sub­stance so as to en­dan­ger the per­son or any­one else.”

“Zero tol­er­ance for mar­i­juana at the work­place, as a safety stan­dard, sur­passes the stan­dard of not be­ing im­paired at the work­place,” he wrote.

In the Cal­gary case, heavy-equip­ment op­er­a­tor Chuck Han­more had a card from Health Canada au­tho­riz­ing him to con­sume up to three grams of cannabis per night to deal with chronic pain from a de­gen­er­a­tive neck dis­ease. He tes­ti­fied that he only used one-third of a gram each evening.

The city de­ter­mined in 2012 that he could not re­turn to “safety-sen­si­tive ser­vice”. An ad­dic­tion doc­tor con­cluded that he “suf­fered a de­pen­dency on mar­i­juana”, based on an ad­mis­sion that he had been con­sum­ing weed for 15 years. This spe­cial­ist did not speak to Han­more’s physi­cian.

Af­ter Lo­cal 37 of the Cana­dian Union of Pub­lic Em­ploy­ees filed a griev­ance, two of three ar­bi­tra­tionboard mem­bers con­cluded that the em­ployer “fun­da­men­tally cre­ated the ‘de­pen­dency’ is­sue”. The ma­jor­ity also con­cluded the city’s in­ves­ti­ga­tion was de­signed to look for ways to pre­vent Han­more from per­form­ing his du­ties rather than to es­tab­lish the facts.

He was re­in­stated to his po­si­tion on the con­di­tion that he sub­mit to ran­dom test­ing for sub­stances and that the em­ployer could per­form ran­dom work-per­for­mance mon­i­tor­ing. Han­more was also in­structed to con­sult with his doc­tor about ask­ing Health Canada to re­duce his monthly al­low­able medic­i­nal-cannabis al­lot­ment to 0.3 grams per day.

This year, the Hu­man Rights Tri­bunal of On­tario up­held the dis­missal of a high-rise pain­ter who smoked mar­i­juana at work to deal with chronic pain. “The ev­i­dence is over­whelm­ing that this is a safety sen­si­tive work­place,” wrote tri­bunal mem­ber Colin John­ston in his Feb­ru­ary rul­ing. “Pro­hibit­ing the use of im­pair­ing drugs seems more than rea­son­able in the con­text of this job site and the risks in­volved in any work­place er­rors.”

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