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7 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2018 Undue hardship cited in medical marijuana ruling F or employers concerned about the growing use of medical marijuana by employees, a recent decision provides more answers — and perhaps some comfort — when it comes to accommodation. Essentially, employers may be able to claim undue hardship when it comes to employees in safety-sensitive positions who consume medical cannabis. It's a notable decision, says Heather Het - tiarachchi, a labour and employment lawyer at Integritas Workplace Law Corporation in Vancouver. "There's no test for actually assessing current impairment with cannabis use . . . What the arbitrator is saying is: If you can - not measure it, then you cannot manage it, and in a safety-sensitive position, that's a huge risk for an employer, so it amounts to undue hardship." The case involved Harold Tizzard, who applied for a job at Valard Construction — a major contractor working on a project owned by Nalcor Energy involving a hydro - electric generating facility in Labrador. He applied for a labourer position in November 2016 and was accepted, subject to a satisfac- tory drug and alcohol test. Tizzard — who suffers from osteoarthritis and Crohn's disease — revealed he took med- ical cannabis and later presented a note con- firming his authorized use of the drug, but the employer requested more information. While waiting several months to sort out the issue, Tizzard ended up applying for an- other position at Valard, that of an assembler. Ultimately, he was not accepted for em- ployment, despite his physician saying the impairment from his evening consumption of medical marijuana only lasted about four hours, so it would not impact him reporting to work the next morning. As a result, his union filed a grievance claiming Valard wrongfully refused to pro - vide accommodation arising from Tizzard's disability. It said he was fit for employment even though he was using medical cannabis in the evenings. But Valard said the two positions in - volved were safety sensitive, so it was essen- tial to determine a person's ability to work without impairment, and the company had an obligation under legislation to all work- ers to ensure a safe workplace. Valard also claimed it met its obligation to individually assess Tizzard's case to the extent possible because of the limited in - formation from his physician. In addition, the safety risks added to the workplace by Tizzard's use of medical cannabis brought Valard to the point of undue hardship. At the arbitration in April, 13 witnesses were called to provide evidence, including medical physicians and a pharmacologist. Arbitrator John Roil also referred to three "guidance" documents — a 2013 document from Health Canada for health-care profes - sionals, a 2014 guidance from the College of A roundup of legal department news and trends At Pallett Valo LLP we give you what you need, not what you don't. With our flexibility and the right expertise in a variety of business law areas, we provide you with a legal solution that is tailored to suit you – all without compromising service or quality. If you want legal representation that's just the right fit for you, try on our Right-sized Thinking®. The Right Fit Matters Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts ntitled-2 1 2018-10-23 1:50 PM

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