March 10, 2016
The use of medical marijuana is on the rise. As a result, construction employers are grappling with how to manage employees with a prescription for pot.
Employers face two competing obligations: on the one hand, they have a duty to “accommodate” disabled employees, and medical marijuana is used to treat medical conditions that may be a “disability”. On the other hand, employers have to take “every reasonable precaution” to ensure workplace safety.
Two recent cases in BC and Alberta are examples of how hard it can be to strike the balance. A key consideration, however, appears to be whether there is evidence that an employee is actually impaired at work.
In the BC case (French v. Selkin Lodging, 2015 BCHRT 101 (CanLII)), the employee was a cancer survivor who smoked marijuana several times throughout the workday to manage chronic joint pain. Although a doctor had verbally told the employee he could use marijuana if it worked, the employee did not have any actual documentation allowing him to lawfully possess and use marijuana for medical purposes. Concerned about safety, the Company told the employee he could not continue working if he continued smoking at work. The Company terminated him, but left the door open to his job if he agreed to return drug-free.
The BC Human Rights Tribunal found in favour of the Company. Although there was no evidence that marijuana had ever affected the employee’s performance at work, the Tribunal decided that the Company had not broken the law by dismissing the employee. The employee had clearly violated the Company’s “zero-tolerance policy” for drugs at the workplace, and that policy was reasonable.
In Alberta, however, a labour arbitration board found in favour of a municipal employee who had been prescribed marijuana to deal with back pain (Calgary (City) v. Canadian Union of Public Employees, 2015 CanLII 61756 (AB GAA). The employee operated a grader on city streets, which was clearly a dangerous or “safety-sensitive” job. He obtained a legal permit for medical marijuana and began using small amounts, only at night before going to bed. After the City learned of this, it removed him from his job, and placed him in a “non-safety-sensitive” job, where he was no longer operating vehicles or heavy machinery. The union challenged this move, and argued that the employee should be allowed to continue operating the grader even though he was using prescription marijuana every night.
Surprisingly, the arbitrators in this case agreed with the union, and ordered the City to reinstate the employee to his former job. A key fact in this case was that there was no evidence that the employee abused the drug, or that he had ever been impaired at work.
What was even more surprising in this case was that, as part of the decision, the arbitrators ordered the employee to undergo random marijuana testing in the future, to ensure he would not be impaired at work. While this kind of testing would make sense for something like alcohol, it does not make sense for marijuana. Marijuana remains in a person’s system long after the impairing effects have worn off, and the person would test positive for marijuana for days – even weeks – after using the drug. Because the employee in the Alberta case is using marijuana every night before bed, he will always test positive for the drug in his system, and the arbitrators’ order for random testing will not accomplish much in terms of assessing whether the employee is actually high at work.
It is clear that both the science and the law are struggling to catch up with the situations faced by employers. As a result, employers should ensure they have a solid drug and alcohol policy that sets out a zero tolerance policy for drugs and alcohol on site, and prohibits employees from reporting to work impaired.
This issue should also get employers thinking about the safety hazards that could be caused by other types of prescription drugs. If we don’t allow an employee on site because he or she is high on marijuana, why would we turn a blind eye to an employee who is impaired as a result of any other prescription medication?
Ultimately, employers must think through these issues before they’re faced with them on the jobsite. Otherwise, they may find themselves in stormy seas of litigation or – much worse – a major accident or fatality on the job.
The “Dean Report” on the College of Trades, released in November 2015, recommends establishing a new appeal route for employers who get ticketed for assigning work to the “wrong” trade. As we explain below, the recommendation does not go far enough, but at least it tries to do something about a problem that must strike construction employers as absurd.
The Dean Report to the government was supposed to address some of the concerns about the College that have arisen since its inception in 2013.
For construction employers, one of the bigger complaints about the College has been its practice of issuing tickets to them and their employees for performing work outside a trade’s “scope of practice”, despite the fact that they are following long-established practices of work allocation between trades.
The legislation that established the College defines a “scope of practice” for each construction trade – a list of tasks that are performed by that trade. For compulsory trades, it is illegal for a worker to do work falling within that trade’s scope unless they hold a Certificate of Qualification for the trade.
Unfortunately, several “scopes of practice” for compulsory trades could be (and have been) interpreted to include tasks that are generally, if not exclusively, performed by voluntary trades. In some cases, this work is done by voluntary trades because the OLRB has decided that it should be assigned to those trades following jurisdictional disputes. In other cases, the assignment reflects an agreement or simply longstanding practice.
To illustrate, this exact problem arose on the Herb Gray Parkway in Windsor, where College inspectors issued tickets to LIUNA members for installing conduit, cable tray and ground rods. College inspectors decided that this was electricians’ work, despite LIUNA’s insistence that they had performed this precise work for decades.
The Dean Report proposes to allow employers to appeal College tickets to the OLRB on the basis that the OLRB has already addressed the assignment of the work in question or there is an existing agreement which applies. The College would have the right to participate in the appeal. If the OLRB decided that issuing the ticket was inconsistent with a previous OLRB decision or an existing agreement, it could nullify the ticket or treat the matter as a jurisdictional dispute between unions.
This would begin to help employers caught in the absurd dilemma of facing a College ticket for assigning work as required by OLRB case law, agreement or practice. College inspectors could still issue the tickets, but at least employers could challenge them, enlisting (one hopes) the help of the union whose members were assigned the work. As the Dean Report notes, this approach should eventually increase the consistency between College enforcement and OLRB “jurisdiction” cases.
The proposal does not go far enough, since it does not appear to address the many situations where there is only well-established practice – and no actual OLRB case law or agreement – but it would be better than nothing.
More important, however, one has to ask what public purpose is served by College enforcement which cuts across long-standing industry norms. It is cold comfort for employers to have a right of appeal on tickets which probably should never have been issued in the first place.
We are excited to announce three new colleagues to our Construction Group.
Stephen A. McArthur, Partner
For almost 30 years, Stephen McArthur has represented employers and their Associations in the Construction Industry. He has represented the interests of contractors of all types before the Ontario Labour Relations Board; in grievances, jurisdictional and sector disputes and in collective bargaining. In the Industrial, Commercial and Institutional sector, Stephen has represented Local and Provincial Associations during every round of negotiations since 1992. His experience and knowledge of the dynamics of Construction Labour Relations have served him and his clients well in circumstances that are always challenging and never “simple”.
While knowledge of the law is essential, personal and professional integrity is also central to the effective representation of clients. With these guiding principles, Stephen has been gratified by recognition in the Canadian Legal Lexpert Directory as repeatedly recommended by his peers.
In addition to his practice, Stephen has also co-authored a number of books, including “Canadian Construction Labour and Employment Law” (LexisNexis), a comprehensive text which covers all aspects of the construction employment relationship across Canada.
Stephen is a graduate of York University, (B.A.1982); Queen’s University,(LL.B. 1985), and Osgoode Hall Law School,(LL.M.1990).
He was called to the Ontario Bar in 1987.
Michael H. Vos, Partner
Michael is a member of the Alberta and B.C. law societies has over 23 years’ experience advising employers on workplace law issues and is certified human resources professional. He has worked in-house with Graham Construction and Engineering in western Canada and Ontario, providing strategic legal advice and specializing in construction labour relations and addressing this company’s human resources and workforce planning needs. He has also worked in-house as a labour and employee relations specialist for companies in the electrical utility and oil and gas sectors with operations in multiple Canadian jurisdictions, the U.S.A. and Mexico.
Michael’s practice focuses on the representation of employers in collective bargaining, before labour relations boards, human rights tribunals and in rights arbitration hearings. Michael also assists clients with policy development and implementation, workplace harassment complaints and investigations, conducting labour relations training and performing employee relations audits.
Michael and his wife have five children. He loves international travel, enjoys skiing and golf with his family and has coached hockey, football and soccer. He is active in different programs with his church and sits on the Board of Directors for a not for profit social service agency in Calgary.
Lori Brienza, Associate
Lori works with clients to achieve practical workplace solutions. In doing so, she provides advice to employers on many workplace matters including wrongful dismissal claims, workers’ compensation and OH&S matters, labour board and grievance arbitration matters, human rights and privacy complaints.
Lori also regularly assists clients on business immigration matters, including obtaining labour market impact assessments, work permits, Canadian permanent resident status and citizenship.
She is a mentor and volunteer advisor with Student Legal Assistance, University of Calgary. Lori also serves as an appointed Public Member on the Board of Directors of the Alberta Motor Vehicle Industry Council.
This newsletter is not intended as legal advice. Any employer or organization seeking assistance should feel free to contact the authors, any member of Mathews, Dinsdale & Clark LLP.