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Spokesman Stuart Green confirmed the TTC’s random drug test cut-off is 10 ng/ml, different from the number Nachim quoted to determine Farrell’s diagnosis. According to the TTC’s employee guide, the TTC drug cut off levels were determined by experts.

“The levels only determine recent usage and therefore likely impairment,” according to the guide. “To be clear, the TTC is not interested in your recreational use of drugs, provided it does not affect your work performance.”

Ernest Doroszuk/Toronto Sun

Amalgamated Transit Union Local 113, which represents 11,000 TTC employees, wouldn’t comment on Farrell’s case because of privacy, but its president Frank Grimaldi said the transit authority’s approach to the use of medical marijuana “appears to be inconsistent with their approach for other prescribed medications. The TTC is failing to act in an objective manner.”

“The difficulty is that the science behind measuring impairment with marijuana isn’t at the level as it is detecting alcohol,” said Toronto employment lawyer Nadia Halum. “But the way they got around that is to say, ‘This is the threshold for impairment’ with marijuana and for (them) to consider it impaired, they increase the threshold even more.”

(The cannabis oil use has) always been in their file and now, suddenly, the TTC does not want to look bad, but also doesn't want to help out their employees, either. Ellaine Farrell, TTC subway operator

Halum said the TTC can have its drug testing policy, but still has to abide by the Human Rights Code. Employers have a duty to accommodate employees unless it would cause undue hardship.

“What that means is as part of this person’s treatment, if she needs to take this oil, the TTC has to accommodate that, unless they can show they can’t accommodate it because of safety reasons,” Halum added. “But that’s where that medical evidence on impairment is relevant. If there is no impairment, they can’t automatically follow this policy as people come forward with legitimate medical needs.”

Meanwhile, Farrell may look into getting her own lawyer to fight her case.

“The TTC has gone overboard,” she said. “I’m advised in their letter as long as I take my medication – which is oxycodone – eight hours before my shift, that I’ll be OK.”

Her voice sinks.

“I may not be.”

jyuen@postmedia.com

What an independent doctor thinks of this case…

Dr. Ira Price, an independent doctor with Synergy Health Services for nearly a decade, told the Sun he’s currently working on a project about educating companies about cannabis in the workplace to define impairment.



“Any amount that she uses from 0.1% THC will likely show up in the urine (on tests),” he said. “It depends on the urine stick they use. Some may be positive and negative. Herein lies the problem with drug testing – we don’t have a level of impairment that is objective. The only substance we can objectively test for is alcohol, because we have those studies. Everything else is a subjective test.”