Dazed and Confused: The Medical Marijuana Challenge

The numbers might just make you sober. Health Canada reports that in the first quarter of 2014, there were 7,914 registered users of medical marijuana. Since that time, the rate of registered medical users has skyrocketed, with Health Canada reporting in the second quarter of 2016 that there were 98,460 registered users. And that number is projected to grow to more than 450,000 in Canada in the next decade. This suggests that eventually most trucking companies will have to confront medical marijuana.

Cross Border Trucking

While Canada and the United States have a long standing reciprocity agreement related to the treatment of commercial drivers’ licences, the approach to medical marijuana appears to differ.

Canada’s National Safety Code, which governs the conditions on which a commercial licence may be issued, advises at Chapter 15 that the use of medical marijuana does not mean that a driver is outright ineligible for a licence.

By contrast, the American Federal Motor Carrier Safety Administration will conclude that a driver is medically unqualified to drive if taking a “Schedule I” drug, including marijuana. On February 1, 2017, the U.S. Department of Transportation Office of Drug and Alcohol issued a statement confirming that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use medical marijuana.”

This means Medical Review Officers will continue to consider a drug test result as positive for marijuana even if they receive information that the driver has a medical marijuana prescription.

In addition, commercial carriers who transport goods to the United States must deal with the U.S. Department of Transportation requirements including the requirement to comply with drug and alcohol testing. Consequently, drivers whose routes take them into the United States should continue to abstain from consuming marijuana, whether on a medical basis or otherwise, in order to pass the required drug tests.

Possession of marijuana is still an illegal act in most circumstances in the United States and in Canada.  American border protection officers have broad powers to deny entry into the United States. Under the American Immigration and Nationality Act (INA), a driver that has committed a violation of any law of any State relating to a controlled substance must is inadmissible to the United States. Importantly, an actual conviction for a crime in Canada or in the United States related to drug use is not required for the driver to be inadmissible. As a result, where the driver is a former user of medical marijuana, border crossing remains a dicey proposition.

Consider the following scenario. Your company has a valued driver who is diagnosed with cancer and must go on medical leave to obtain treatment. During the course of the illness the driver is prescribed and consumes marijuana to assist with the symptoms associated with chemotherapy. Fortunately, the driver recovers and is no longer prescribed marijuana and no longer consumes the drug. The driver now passes all drug tests. Based on the powers listed in the INA, it is entirely conceivable that when the driver truthfully acknowledges his prior use when asked, even though the driver wasn’t violating the law in Canada at the time, the border officer may properly determine that the driver has admitted to a violation of a controlled substances law of the United States. That means that the border officer could refuse your driver entry to the country.

If your company finds itself dealing with these types of questions, consider seeking legal advice from a lawyer familiar with U.S. entry waivers before the driver arrives at the border.

Domestic Carriers

Many commercial carriers will never require their drivers to enter the United States. Those trucking companies do not have to implement the drug testing regime that international drivers deal with.  Nonetheless, questions about how to treat marijuana will arise for domestic commercial carriers as well.

Many employers whose employees work in safety sensitive positions, including trucking companies, are grappling with what may seem like contradictory legal obligations to both ensure a safe work environment while also “accommodating” an employee’s use of medical marijuana under human rights legislation to the point of undue hardship.

Health Canada has stated that driving and other activities involving alertness and co-ordination may be unsafe for up to 24 hours following a single consumption.

Added to the difficulty in determining safety is that the period of time when the driver’s alertness may be affected is said to depend on the dosage, whether the driver smokes or eats the marijuana, and the driver’s age and other health factors.

What’s more, decisions coming out of various jurisdictions in Canada paint a confusing picture with decisions that confirm, and others that overturn, employers’ decisions to terminate or permanently remove the employee from the safety sensitive position. What becomes clear is that the mere fact that an employee is working in a safety sensitive position would not be enough for an employer to justify terminating a medical marijuana user’s employment on the spot. Instead, trucking companies should develop very clearly drafted policies requiring drivers to disclose use of medical marijuana.

When a driver’s use of medical marijuana comes to light, trucking companies should ask their driver for more information, including:

  • Does the driver have a current prescription from a medical doctor?
  • What is the dosage?
  • How is the marijuana consumed?
  • Where and when is the marijuana consumed?
  • What advice does the doctor give about the duration of the drug’s effects on this particular individual based on the dosage and other factors?
  • How long will the driver have to continue taking medical marijuana?

Once the trucking company has all the information in hand, it will be best placed to fully consider whether or how it can meet its legal obligations to accommodate the driver’s disability without itself suffering undue hardship.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

This article first appeared in Western Canada Highway News, Spring 2017 issue.

Allan Foran is a partner with MLT Aikins and practises in the area of transportation. Reach him at aforan@mltaikins.com. Carolyn Frost is an associate practising in labour and employment with MLT Aikins. Reach her at cfrost@mltaikins.com. The authors would like to thank Sarah Carr and Patrick Keating for their contributions to this article.