Before her first driving shift with a new carrier even began, Patti Satok lost her job. After being offered a domestic trucking job and put through the carrier’s two-day orientation, Satok’s pre-employment drug test came back positive for marijuana.
Satok, who was injured on the job five years ago, uses medical marijuana for chronic pain relief while off-duty. She is one of about 40,000 Canadians now holding a prescription for medical marijuana. After her job offer was retracted, Satok initiated a complaint with the Canadian Human Rights Commission. You can read her story, published in the June issue of Truck News, at: http://tinyurl.com/TNmarijuana.
This month, we explore the issue of medical marijuana use in the trucking industry in greater detail.
Canadian trucking companies that employ drivers who use medicinal marijuana, may have to accommodate them to the point of “undue hardship,” or risk violating federal and provincial human rights codes. This could mean providing a driving schedule that allows them to work when the effects of the drug will have worn off, or giving them a non-driving job within the company.
That’s the interpretation of the law from Ken Krupat, an Ontario lawyer specializing in employment law.
“The Canadian Human Rights Code (which governs most truckers) prohibits discrimination on the basis of disability,” Krupat told Truck News. “Someone who requires prescription medication to treat a disability is entitled to accommodation to the point of undue hardship. This should mean that someone who is taking marijuana at some point should not lose a position because of that, assuming that they can medically demonstrate the need.”
But Krupat acknowledged the balance between medication and safety would have to be considered by any human rights commission or court. Krupat isn’t aware of any current cases involving the trucking industry and medical marijuana.
“This may come down to a human rights hearing with competing medical evidence,” he said. “If it could be shown that a certain amount of THC in the blood leads to or contributes to impairment – much like a certain blood-alcohol level – a company could rightly insist that truckers not drive if they test above that level…If some sort of residual level was deemed to be non-impairing, that evidence might be enough to cause a Canadian Human Rights Tribunal to protect the rights of medicinal users.”
Even if impairment levels are found to make driving unsafe, an employer may still have the obligation to retain the driver, Krupat pointed out.
“The company would still be required to try to accommodate the person if there was some other position available, or to try to work out a schedule with the person based on how many hours need to lapse after certain dosages before the person is deemed fit to drive,” he explained. “It certainly seems like there will be a great deal of litigation over this subject in the near future.”
Ron Marzel, a Toronto lawyer who specializes in Canada’s marijuana laws, says medical marijuana is not always impairing.
“For some people it can be impairing,” he said. “It’s very unique to the individual. For some people, the use of medical cannabis can be impairing and they shouldn’t be driving. For some people, however, it’s not impairing and there have even been court cases where the courts have said, ‘Yes, this person was consuming cannabis, however based on the evidence they weren’t impaired – they were perfectly functional.’ So it’s a very tricky area for both employers and employees.”
Marzel warned against terminating drivers just because they use medical marijuana.
“If they terminate somebody or don’t give them a job simply because they use medical cannabis, that could be a violation of that individual’s human rights and the employer could find a human rights suit or complaint filed against them,” Marzel said. “I don’t think it’s sufficient on the part of the employer to say ‘You use cannabis, so we’re not going to hire you.’ They need to go a bit beyond that to assess whether or not the individual is indeed impaired by the use of medical cannabis, and there are drug recognition experts out there that can make that assessment.”
Domestic drivers who are terminated or denied a job simply because they use marijuana medicinally have the opportunity to fight back. If the carrier that terminated or denied them the position based on their use of medicinal marijuana is provincially regulated, they can file a complaint with their provincial human rights commission. If the carrier is federally regulated, they can do likewise with the Canadian Human Rights Commission.
Damages through this avenue are usually capped at about $10,000, Marzel explained, and it could be three to eight years before a decision is reached, but the process is free for the complainant.
Alternatively, employees can hire a lawyer and initiate a Superior Court Action. This process is usually quicker and there is no limit on damages that can be sought, but Marzel acknowledged the legal costs are often a deterrent. When pursuing a decision through the Superior Court, the process usually concludes within six to 12 months. Truck News has contacted several truck insurance specialists to find out if medical marijuana users are insurable. However, they declined comment, as no formal policies seem yet to exist.
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