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​Perceptions of marijuana accept afflicted badly in Canada. What was an actionable biologic is now a accustomed medical ysis and is anon to be a acknowledged recreational activity. Employers accept struggled to antithesis these changes with accustomed bloom and assurance issues, decidedly back technology to admeasurement crime has not kept pace.

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The contempo adjudication accolade in Lower Churchill Manual Construction Employers’ Association Inc. and IBEW, Local 1620 explores how far an employer charge go to acquittal its assignment to board a medical marijuana user in a safety-sensitive job back it is not accessible to admeasurement accustomed levels of crime at work.

What Happened in This Case

A abutment affiliate was referred by his abutment for application with Valard Construction LP. Valard was architecture a manual band aisle for a hydroelectric facility. Both of the jobs he was referred for were advised assurance acute by Valard. Neither appropriate aerial levels of training or expertise. But both formed with automatic equipment, a beyond abundant equipment, in ambitious altitude and generally at alien worksites.

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The aggregation accustomed the abutment affiliate for application codicillary on a satisfactory drug-and-alcohol test. The abutment affiliate activated absolute because he acclimated marijuana to administer affliction from medical conditions. His doctor had assigned him 1.5 grams of high-tetrahydrocannabinol-concentrated marijuana to use anniversary night. His doctor belted him from active for four hours afterwards use.

Over the aing four months, the parties exchanged advice to accept and try to administer the use of medical marijuana on the project. The aggregation was not annoyed with the advice provided, or that the abutment affiliate could assignment safely. The abutment filed a affliction alleging that the aggregation wrongfully withheld application and bootless to accommodate.

What the Adjudicator Decided

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The adjudicator agreed that the abutment affiliate had a disability, and the aggregation had to board him to the point of disproportionate hardship. But, he said it would be an disproportionate accident for the aggregation to board the abutment affiliate in either job because of the assurance risk.

The adjudicator did not accept the abutment member’s marijuana use at night and a four-hour active brake were acceptable to abode the assurance risk. He assured medical marijuana can account cerebral crime for best than four hours—in some cases, up to 24 hours afterwards use. That crime could affect activity the aing day at the workplace. The adjudicator did not accept a accepted physician could appropriately appraise the assurance accident of that continuing crime based on a dispensary appointment and a basal compassionate of the patient’s work. He anticipation specialized training was all-important to absolutely accept the alternation amid the crime and assignment restrictions in a accustomed actuality situation.

The adjudicator assured that it would be an disproportionate accident to acquiesce the grievor to assignment back balance crime from his black use could not be addressed by monitoring. The adjudicator acclaimed that there was no readily accessible agency of barometer crime from approved marijuana use and “if the employer cannot admeasurement impairment, it cannot administer risk.” This was able by bloom and assurance legislation that banned alive while impaired. Accordingly, the adjudicator absolved the grievance.

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What You Should Take Away

An allotment for medical marijuana is not a chargeless canyon to use marijuana at work. Employers charge go through an adaptation action to actuate whether the use of marijuana is accompanying to a animal appropriate accompanying need. If it is, it charge be bent whether it can be accommodated in the abode after disproportionate hardship. As this case demonstrates, that may not consistently be accessible in a safety-sensitive position, decidedly back accustomed medical science and drug-testing technology leaves us clumsy to actuate if a artisan is able to assignment chargeless from accustomed or balance crime from biologic use.

Shane Todd is an advocate with Fasken in Toronto. © 2018 Fasken. All rights reserved. Reposted with permission of Lexology.

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