B.C. mining company gets second opinion on complete effects of medical marijuana

A British Columbia employer did not have to return a worker with a medical marijuana prescription to his safety-sensitive position based on a medical report that didn’t address its concerns about the risk, an arbitrator has ruled.

The worker was a certified warehouseperson for Teck Coal at its Elkview operation in B.C. His job duties involved unloading delivery vehicles, putting away deliveries, labelling parts and counting inventory. He often used a forklift for these tasks.

The worker suffered from chronic pain from a back injury he sustained in 1991. From 2012 to 2015, he was prescribed Oxycodone for the pain but this caused him to suffer from withdrawal symptoms, depression and anger.

In 2015, the worker’s doctor wrote a prescription for an opioid medication, but he said he would prefer to switch him to medical marijuana. The doctor said he expected that the worker would be able to function in his normal work capacity — which was a safety-sensitive position — but he would continue to monitor him.

The following month, the worker advised the union and Teck of his medication change before he returned to work from a three-week offsite apprenticeship. Teck confirmed its policy that “anyone using marijuana recreationally or for medicinal purposes poses a safety risk.” The company said that it would only review an individual case if they took a test in advance.

The worker told Teck that his prescription was a “low THC/CBD mix” of cannabis that consisted of one-sixth to one-seventh of a gram, five to six times per day. The worker agreed to an independent medical examination (IME).

The IME doctor submitted a report stating that in his opinion, there was no risk from the worker using one-half to one gram of cannabis per day. The doctor noted that the worker probably used medical cannabis almost too cautiously because he was aware of the risk in the workplace and therefore his pattern of use wasn’t a concern.

Teck sought an assessment from another doctor, who submitted a report opining that “the use of medical marijuana is inconsistent with working in a safety-sensitive position.” The second doctor said that there was an issue of elevated risk of cognitive impairment, human error, accident and injury associated with the daily use of marijuana and the IME doctor’s report was based more on anecdotal accounts than hard evidence, while research associated marijuana use with cognitive impairment. The second doctor also noted that people who take marijuana often can’t recognize their impairment, so the worker couldn’t be trusted to know if he was a risk.

Teck maintained that the worker could only return to work if he tested negative for marijuana. The union filed a grievance.

The arbitrator found that it was reasonable for Teck to prevent the worker from returning to his position. The IME doctor’s report didn’t directly address the company’s concerns about impairment and made broad statements instead. The worker said that his prescription included low levels of THC — the ingredient in marijuana causing impairment — so there was an impairment risk.

The arbitrator also found that Teck never agreed that the IME doctor would have final say on the matter and the company was entitled to another medical opinion. The fact that it agreed to the IME showed that it was open to the idea of letting the worker return to his position with sufficient medical evidence. However, the IME doctor didn’t adequately address the company’s concerns or provide medical evidence supporting the worker’s return to his safety-sensitive job while taking cannabis medication before or at work multiple times per day, the arbitrator said.

“The evidence indicates that the [worker] would likely be experiencing some amount of impairment that precludes him from working in the warehouseperson position,” the arbitrator said in dismissing the grievance.