Health and Safety Violation

[vickyp]

#80596

We are a BC employer. We have a crane truck driver who contacted a power line with his crane truck. Luckily everyone is safe and no one was injured but it could have been a lot worse. The employee was not following proper safety procedure at the time of the incident. WorkSafe is involved. Our mechanic went to the site to inspect the vehicle before allowing it to be driven. When he went inside the truck he said it smelt strongly of marijuana and then when he looked down he saw in the drivers personal bag inside our work truck that had a box with what looked like marijuana in it. He reported this to us the next day. What are we able to do in this situation?

[vickyp]

#80595

You are so on the ball. The Qs you ask shows you are on top of the risks. Yes, you can do all of these things but you do run some legal risks.
Constructive Dismissal: I think you’re pretty safe on this one. REMEMBER: Just personal opinion not counsel. True, the reassignment is a unilateral and unfavourable change in employment terms raising the specter of CD. But, as u note, it’s a disciplinary action and one grounded on solid and legitimate safety concerns. Of course, you could take the air out of the CD balloon by offering employment at commensurate pay and terms. But if that’s not available, I think u got a solid defence against CD. Especially true if u have and are following a clear progressive discipline policy which provides for demotion in the event of safety and other serious violations and follow that policy consistently with other workers.
My bigger concern is failure to accommodate. But that’s only an issue if the worker has an addiction or dependency. And u haven’t indicated that’s the case. Even if it is the case, u r in a strong position to argue that the demotion is justified and allowing the worker to do a safety-sensitive job is undue hardship. Take a look at the summary of a case from last year posing this Q, albeit in slightly different circumstances.
Not Discrimination to Deny Safety-Sensitive Job to Legal Medical Marijuana User
After one successful stint, a veteran and reliable construction worker was rehired to work on another project provided that he pass a drug test. Before taking the test, he revealed that he legally vaped about 1.5 grams of medical marijuana containing up to 22% THC each night after work to manage pain related to Crohn’s disease. So, the employer revoked the offer in the interest of safety. The union claimed discrimination but the arbitrator tossed the grievance. The worker was entitled to accommodations but letting him do a safety-sensitive job would be undue hardship. Although he vaped only after work hours, THC remains in the system at potentially impairing levels for up to 24 hours.  Offering him a non-safety-sensitive position would be a reasonable accommodation; unfortunately, no such jobs were available. The union appealed but the Newfoundland court said the arbitrator’s ruling was reasonable and refused to reverse it [IBEW, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48 (CanLII), Feb. 22, 2019].
All in all, u seem to be handling this quite sensitively BUT I STILL STRONGLY ADVISE YOU TO TALK TO A LAWYER. Stay well. Glenn

and failure to accommodate.

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