Can A Cannabis User Qualify For Rapid Safety Sensitive Worksite Access?

Author:Ms Deborah Cushing
Profession:Lawson Lundell LLP
 
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Employers who operate safety sensitive worksites will find the recent decision of the Alberta Human Rights Tribunal in Everitt v Homewood Health Inc., 2019 AHRC 36 of interest. In this decision, the complainant, Brad Everitt, was a member of a building trade union and worker in the construction industry. The respondent, Homewood Health Inc., administered a rapid site access program (“RSAP”) which is a voluntary program that provides pre-qualification to workers for access to safety sensitive worksites. Everitt was denied participation in the RSAP by Homewood when he failed a pre-enrollment test due to cannabis use. He filed a human rights complaint that he had been denied a service customarily available to the public on the basis of a disability.

Some employers who operate safety sensitive worksites, such as mine sites or oil sands projects, require workers who are dispatched to the site to pass a pre-access drug and alcohol screening test prior to commencing work. Given that the testing and processing of results at the time of dispatch can create significant delays, RSAPs have been developed to provide for an alternative testing program. Under a RSAP, workers who pass an enrolment drug and alcohol test and agree to be subject to random drug and alcohol testing while at work, among other requirements, are given active RSAP status and are not required to take a pre-access screening test at the time of dispatch to a worksite. Participation in RSAP is voluntary; workers who do not qualify for RSAP or who do not wish to participate in RSAP are still eligible for dispatch to jobs on safety sensitive sites but must go through the traditional pre-access testing process. Enrolment in the RSAP does not give a worker any preferential dispatch status.

In Everitt's situation, he had been a recreational user of cannabis for about 25 years and had used cannabis for medical purposes for more than ten of those years to manage pain related to arthritis. He applied to participate in the RSAP administered by Homewood and failed the pre-enrolment test when his test results measured 1,200 nanograms per millilitre for tetrahydrocannabinol (THC), a psychoactive constituent of cannabis, when the threshold permissible level was 50 nanograms per millilitre. As a result, Homewood did not permit Everitt to participate in the RSAP. He was still eligible to be dispatched to safety sensitive worksites, but would need to go through the standard pre-access...

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