Pubdate: Tue, 15 Nov 2016
Source: Vancouver Sun (CN BC)
Copyright: 2016 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Kim Pemberton
Page: A4

MEDICAL POT USE, WORK SAFETY IS TRICKY ISSUE

A B.C. Human Rights Tribunal case involving a gymnastic coach
suspended after co-workers claimed she was "stoned" at work when she
used medical marijuana raises a difficult issue for employers, experts
say.

How do you balance the needs of an employee who requires medical
marijuana with ensuring there is no "intoxication" at work, asks
adjunct professor Mark Haden of the University of B.C.'s School of
Population and Public Health.

"The real issue is impairment testing, and that's hard to do right
now. Urine analysis testing isn't useful, since marijuana can be
detected for 30 days - long after any psychological or physical effect
has passed," he said.

National policies on marijuana use are needed for the workplace, Haden
said. "It's easier with alcohol because there isn't 'medical alcohol'
use. Cannabis is trickier to test."

While it is clear people should not be allowed to create a dangerous
environment at work, he said, employers can only determine through
observation whether a person using medical marijuana is
intoxicated.

Mark Thompson, professor emeritus at the Sauder School of Business,
said he recently attended a conference about marijuana for labour
arbitrators and what they heard was there is very little case law on
the issue.

"Right now the law is very unclear, understandably, since it hasn't
been legalized yet and the number of cases involving medical marijuana
are not very numerous," he said. "The Human Rights Tribunal has a test
case (with the gymnastics coach) that will have repercussions in the
workplace. I assume one of the defences is it was being taken for
medical reasons, but even if you were taking painkillers, you still
can't be impaired. If you can't function, the employer has the right
to exclude you from the workplace."

Thompson said if there was a scientific way to measure the impairment
of marijuana it would make it easier to create a national standard.
"Legalizing marijuana may look good and impressive to the electorate,
but there are lots of technical issues to be resolved, and this is one
of them," he said.

Simon Fraser University professor Neil Boyd, a longtime advocate for
legalizing marijuana, said if the coach wasn't able to do her job
because of her medical marijuana use, then it is valid to not allow
her to continue in the workplace.

"The fact you are a medical marijuana user doesn't isolate you from
any liability in the workplace. We certainly allow people to use a
number of medications, and that should be the case with medical
marijuana, but if you can't do your job because you are impaired then
that's a problem," he said.

The gymnastics coach's boss had a zero-tolerance policy toward illegal
drug use when she was suspended in 2015. In tribunal documents, she
says she never came to work impaired and used medical marijuana in her
off-time to manage acid reflux and other gastric problems. Her
employer countered that it was unsafe for her to coach children on
hazardous gym equipment.

Medical marijuana is a problematic issue for employers, many of whom
treat it the same as alcohol, said Robyn Durling, the communications
director for the B.C. Human Rights Clinic, which is representing the
coach.

"In the past, people have seen alcohol and marijuana to be the same
problem in the workplace, but now with medical marijuana it needs to
be seen as a pharmaceutical," Durling said. "The test is an employer
will have to show the person was impaired."

Durling said the tribunal is expected to hear the case in about nine
months, but it is likely it will be settled before that. He noted only
about two per cent of complaints go to a hearing.
- ---
MAP posted-by: Matt