Presence of THC in urine analysis did not justify firing, says arbitrator

Zeedox

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McInnis stated that he had consumed a small amount of cannabis between 7-7:30 pm the night before, which the railway company said caused a “residual impairment” that led to the accident.

The arbiter agreed with the union, saying they felt CNR had acted in bad faith and had been attempting to make an “end run” around established rulings to give them the ability to fire other employees for any cannabis use.

“In my view, the Company is taking an end-run attack at the longstanding jurisprudence knowing full well what the end result must be,” wrote Schmidt. “It is doing so in the context of marijuana having become lawful and in the context of recently unilaterally imposed D&A Policies in the railway sector being challenged as unenforceable based on existing standards and jurisprudence.”

In her decision, Schmidt awarded $5,000 in damages and that the employee be rehired with compensation of all wages and benefits lost and without loss of their position of seniority as a union steward.
 

Gomez Adams

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From Mayo Clinic Labs:

The metabolite of marijuana (THC-COOH) has a long half-life and can be detected in urine for more than 7 days after a single use. The presence of THC-COOH in urine greater than 100.0 ng/mL indicates relatively recent use, probably within the past 7 days. Levels greater than 500.0 ng/mL suggest chronic and recent use.

So that guy tested at 197. So that jibes with his story that he had smoked the night before. In order to hit around 500 or higher, he would have to have smoked an awful lot and probably within a few hours of the test, meaning he smoked in the parking lot before he walked in to work.

Still, I see the company's point on this: they're probably not going to be covered by their insurance carrier for this accident because he had marijuana in his system and there is nothing they can do about it.

Imagine if he has another accident and he tests positive again at any level. Then the employer will probably be sued for gross negligence for having what will appear to be a chronic abuser causing workplace accidents.

As the employer, you can't win. It's a ridiculous system that needs to be overhauled dramatically.
 

Zeedox

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Still, I see the company's point on this: they're probably not going to be covered by their insurance carrier for this accident because he had marijuana in his system and there is nothing they can do about it.

Imagine if he has another accident and he tests positive again at any level. Then the employer will probably be sued for gross negligence for having what will appear to be a chronic abuser causing workplace accidents.


And this is why we have unions, arbitrators and human rights boards. The company tried an end-run and got caught. Cannabis is now a legal product in Canada. The federal government, so far, has failed to establish what constitutes an impaired level for the operation of vehicles while using cannabis (because they won't) unlike another legal substance in Canada (alcohol). And like alcohol there can be trace amounts which are considered not to impair the use of equipment. This is how we get a limit for thc.

As far as the insurers, like it or not the insurance company can not cry foul here (to a point) - no 'impairment law' was broken. They too will be held under federal law if they try to withhold payment unless they show the company tried to end-run the system...uh oh....

And even if he has another accident and tests positive there are a couple outcomes:
1. If the company has now designated his position as a "no drug use' in x-days (oops no alcohol now either and certain meds will make you unemployable just like the airline industry) then they can legally fire him or provide counselling etc;
2. If the feds have established a legal limit then the company would be required to prove he was over "X" limit of thc; and then Step 1;
3. If the feds haven't established a legal limit and the company has dragged it's feet then we get to play again.
 

Gomez Adams

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As far as the insurers, like it or not the insurance company can not cry foul here (to a point) - no 'impairment law' was broken. They too will be held under federal law if they try to withhold payment unless they show the company tried to end-run the system...uh oh....
If that's the case, then as an insurer, I would stop doing business in Canada at all.

The very fact that the government refuses to place any guidance on THC levels makes the aspect of blindly covering people that use it untenable in the extreme.
 

Zeedox

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If that's the case, then as an insurer, I would stop doing business in Canada at all.

The very fact that the government refuses to place any guidance on THC levels makes the aspect of blindly covering people that use it untenable in the extreme.

As far as the insurer is concerned the company fucked up here in not following it's own corporate directions. Companies that have established protocols and followed them can expect payouts. Insurance companies do business here under those rules. I will say none of them have left since legalization, there's still bucks to be made.

We have no law because the feds know establishing that limit will be a dog's breakfast since cannabis effects are so much different then alcohol. Just because someone has X thc doesn't necessarily make them 'impaired'. Consequently we also have a very nebulous set of "under the influence laws" for stopping motorists atm.
 

Hugo Stiglitz

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If that's the case, then as an insurer, I would stop doing business in Canada at all.

The very fact that the government refuses to place any guidance on THC levels makes the aspect of blindly covering people that use it untenable in the extreme.
Wrong answer. Thank you for playing. Here's the part you missed.

Although a report from the employees supervisor showed no description of visible impairment, and no drugs or alcohol were detected in the oral swab (detecting down to 10ng/mL), CNR fired McInnis after the results of his urine analysis showed THC metabolite at a level of 197 ng/mL.

Urine always holds shit longer than oral. Had they found drugs present in that oral swab and had they seen the guy acting impaired then he would have been fucked. But they didn't.

What that boils down to is having a glass of wine with dinner and hitting a road block DWI check on the way home. If you're not exhibiting any signs of impairment and blow a .03 then you're good to go. Simply having the wine isn't a sure fire fuckup. Have 4 glasses of it though and then it's your ass.

Same thing here. The guy tested for traces of past use but no current or recent use and exhibited no signs of impairment. He's good to go.