Canadian Occupational Safety

6 Canadian Occupational Safety | www.cos-mag.com WORKPLACE NEWS SCC upholds claim of workers' compensation against non-employer By Elizabeth Raymer T he Supreme Court of Canada (SCC) has upheld the decision of the Court of Appeal for British Columbia, which found a for- estry company liable for the death of a contract worker employed on its premises. In West Fraser Mills Ltd. v. Workers' Compensation Appeal Tribunal et al., the Supreme Court upheld a claim of workers' compensation against a non-employer, West Fraser Mills, which as the licence holder of the area of the forest where the accident occurred was the "owner" of the workplace as defined in Part 3 of B.C.'s Work- ers Compensation Act. A tree faller died after being struck by a rotting tree while working within the area of a forest licence held by the appellant. West Fraser was not his employer, as he worked for an independent contractor. After inves- tigating the incident, the Workers' Compensation Board found that West Fraser Mills had failed to ensure that all activities of the forestry opera- tion were planned and conducted in a manner consistent with the Occupational Health and Safety Regulation. In addition, the board imposed an adminis- trative penalty of $75,000 on West Fraser Mills pursuant to s.196(1) of the act, which per- mits the board to penalize an "employer." Undue hardship cited in medical marijuana ruling By Sarah Dobson F or employers concerned about the growing use of medical marijuana by employees, a recent decision provides more answers — and perhaps some comfort — around accommodation. Essentially, employers may be able to claim undue hardship when it comes to employees in safety-sensitive positions who consume medical cannabis. It's a notable decision, said Heather Hettiarachchi, a labour and employment lawyer at Integritas Workplace Law in Vancouver. "There's no test for actually assessing current impairment with cannabis use… What the arbitrator is saying is 'If you cannot measure it, then you cannot manage it,' and in a safety- sensitive position, that's a huge risk for an employer, so it amounts to undue hardship." The case involved Harold Tizzard, who applied for a job at Valard Construction — a major contractor working on a project owned by Nalcor Energy involving a hydroelectric generating facility in Labrador. He applied for a labourer position in November 2016 and was accepted, subject to a satisfactory drug and alcohol test. Tizzard — who suffers from osteoarthritis and Crohn's disease — revealed he took medi- cal cannabis, and later presented a note confirming his authorized use of the drug, but the employer requested more information. While waiting several months to sort out the issue, Tizzard ended up applying for another position at Valard, that of an assembler. Ultimately, he was not accepted for employment, despite his physician saying the impair- ment from his evening consumption of medical marijuana only lasted about four hours, so it would not impact him reporting to work the next morning. As a result, his union filed a grievance claiming Valard wrongfully refused to provide accommodation arising from Tizzard's disability. It said he was fit for employment even though he was using medical cannabis in the evenings. But Valard said the two positions involved were safety sensitive, so it was essential to determine a person's ability to work without impairment, and the company had an obliga- tion under legislation to all workers to ensure a safe workplace. Valard also claimed it met its obligation to individually assess Tizzard's case to the extent possible because of the limited information from his physician. In addition, the safety risks added to the workplace by Tizzard's use of medical cannabis brought Valard to the point of undue hardship. At the arbitration in April, 13 witnesses were called to provide evidence, including medi- cal physicians and a pharmacologist. Arbitrator John Roil also referred to three "guidance" documents — a 2013 document from Health Canada for health-care professionals, a 2014 guidance from the College of Family Physicians of Canada on authorizing dried cannabis for chronic pain and 2014 guidelines from the College of Physicians and Surgeons of New- foundland and Labrador on marijuana for medical purposes. In the end, Roil concluded the regular use of medically authorized cannabis products can cause impairment of a worker, and the length of cognitive impairment can exceed four hours after ingestion — sometimes up to 24 hours. In addition, he said a general practising physician is not in a position to adequately determine the daily safety issues in a hazardous workplace. Roil also commented on the lack of testing technology for cannabis impairment, conclud- ing that the inability to measure and manage that risk of harm constitutes undue hardship for the employer. "(Tizzard) has chosen a therapy which, while effective in term of his pain relief, requires more research and knowledge than is currently possible in order to ensure an employer's ability to determine impairment in a construction environment," he said. It is a very significant and noteworthy decision, not only in addressing what can be appropriately considered a safety-sensitive position, but in dealing with the issue of accom- modation and medical cannabis for those positions, said Brian Johnston, a partner at Stewart McKelvey in Halifax. "What has clearly happened is that there is an increasing knowledge about the lingering, impairing impacts, otherwise known as the residual impairment, of marijuana, including medical cannabis, and employers who are becoming better informed about the residual impairment associated with cannabis are now looking at how well that risk fits with employ- ment in safety-sensitive positions." Tara Erskine, partner at Mathews Dinsdale and Clark in Halifax, said the case recognized the fact that even though a person may not feel impaired, they still may not function, respond or react normally — all critical aspects in safety-sensitive work. "It's not like alcohol or cocaine where there's a narrow window and if you test someone for alcohol, you know when they've consumed alcohol," she said. "It's not the same for cannabis because it stays in your system 28 days or longer, so it's a real problem and it's only going to get more significant when recreational use of cannabis is legalized." This article originally appeared in Canadian HR Reporter, a Thomson Reuters publication. Ontario workplaces 1.6 per cent safer this year: WSIB O ntario's employers have improved their safety by 1.6 per cent compared to last year, according to the Workplace Safety and Insurance Board (WSIB). The WSIB launched the Health and Safety Index in May 2017 to start tracking the overall health and safety of Ontario's workplaces. The index compiles data on prevention, empowerment, workplace culture, enforcement and injuries and combines the areas into a single measure. "Better intelligence leads to better outcomes," said Christina Hoy, vice-president, corporate business information and analyt- ics at WSIB. "Using this measure, we have the opportunity to raise awareness, highlight issues using evidence-based data and help our system partners focus their health and safety efforts and resources where they're needed the most." The top performing area on the index this year was "empower- ment," improving by 13.2 per cent since 2017. This includes refusals of unsafe work, complaints and employee involvement in health and safety practices. "This data supports underlying research demonstrating that a person's ability to bring up safety issues speaks highly of their abil- ity to participate in the workplace's health and safety program and culture," WSIB said. Enforcement — which includes fines, orders and convictions — came in second, with an increase of 4.1 per cent. Some areas with lower scores include workplace safety and aware- ness culture, injuries and prevention. The index also reveals individual scores for Ontario's construc- tion, manufacturing, health care and social services, retail trade and transportation and warehousing industries. Ontario's construction industry experienced the biggest improve- ment overall (3.7 per cent), driven by a strong performance in all areas, especially in prevention and workplace culture. Health care and social services was the only sector to see a decrease in the perfor- mance of their health and safety system. This indicates a weakening of the internal responsibility system — as indicated by all drivers of workplace culture — with both employees and leadership being less involved in workplace health and safety processes, WSIB said.

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