Drug testing dealt a blow in Alberta

Testing prospective employees for drug or alcohol use is a bit of a legal hot potato. An Alberta court recently dealt with the issue in the case of an oil sands worker in Fort MacMurray who tested positive for marijuana. Sean Fairhurst takes an in-depth look at the case and the ramifications for employers.

The reasons for decision in Alberta (Human Rights & Citizenship Commission) v. Kellogg Brown & Root (Canada) Co. constitute the most recent pronouncement on drug and alcohol testing in the workplace by courts in Alberta and it is the first time the courts have been asked to address pre-employment drug testing.

John Chiasson was offered a job with Kellogg Brown & Root (KBR) starting on July 8, 2002. As a condition to the offer of employment, he was required to undergo a pre-employment drug test. The employment offer specifically stated that it was extended to him “subject to the results of your pre-employment medical and drug screen.”

The results of the pre-employment drug screen were received on July 17, 2002. The test came back positive for marijuana. Chiasson was interviewed by KBR’s medical officer and he admitted he had used marijuana five days before the drug test. The day after the meeting with the medical officer, Chiasson was told his employment with KBR was to be terminated immediately. In part, the termination letter stated:

“When offered the position with KBR, it was a condition of employment to successfully pass a pre-employment medical and drug screen. KBR received the results from your drug screen on July 18 and the results were positive for drugs; consequently the organization has no choice but to terminate your employment.”

There was no evidence Chiasson had used drugs or alcohol at work, nor was there any evidence of impairment while he was on the job between July 8 and July 17. Chiasson did admit to being a recreational user of marijuana, and he further testified that he was not, and has not ever been, dependent on any drug or alcohol.

Human rights complaint

Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission stating he had been discriminated against on the ground of disability by virtue of KBR’s pre-employment drug test policy. The commission dismissed the complaint, ruling there was no evidence Chiasson suffered a disability, either real or perceived.

Chiasson appealed the commission’s ruling. The appeal focused on the issue of whether or not the pre-employment drug test policy was discriminatory against those who suffered a disability, real or perceived.

The court, in its reasons, said it was only considering the KBR pre-employment drug test policy. Therefore, it may be argued that the court’s decision is fact specific. However, the court’s decision articulates a number of general principles which would have universal application to subsequent decisions concerning pre-employment drug and alcohol testing:

•pre-employment testing is, on the face of it, discriminatory against drug dependent persons;

•anyone testing positive under such a policy is entitled to human rights protection, whether she is actually disabled or because she is merely perceived to be disabled;

•an employer can perceive employees to be disabled through the use of a pre-employment drug test policy which terminates employees, without first offering accommodation, who test positive; and

•should a pre-employment drug screen policy be judged discriminatory its ultimate legality will depend on whether or not an employer can prove the policy was adopted for a purpose rationally connected to the job, was adopted in an honest and good-faith belief it was necessary and that accommodation, short of undue hardship to the company, is impossible.

The primary battleground on appeal was whether or not the commission had made an error in finding there was no perceived disability. KBR argued that, as Chiasson had repeatedly and continuously asserted he is not drug dependent, the commission was correct in finding there was no disability on which to ground his complaint. Alternatively, KBR argued that, if there was discrimination, its policy was justifiable in all of the circumstances.

A discriminatory policy

The court concluded that even though Chiasson may not be drug dependant, and irrespective of what the company’s perceptions were of him, the policy itself assumes a person who tests positive for drugs is likely to be impaired at work in the future and therefore not fit for duty. The court further stated that “speaking through this policy, KBR demonstrates its belief that any person testing positive on a pre-employment drug test is a substance abuser.” On the strength of this reasoning the court found the policy was, on its face, discriminatory.

It is likely the decision will be appealed to the Court of Appeal. Should that occur, a significant issue on appeal will arise from the assumption drawn by the court that KBR’s zero-tolerance policy assumes an individual who tests positive for drugs is an abuser of drugs.

The KBR policy does not differentiate between categories of drug users. The policy simply assumes that a user, recreational or otherwise, poses a greater safety risk at the worksite. Having regard to the fact there was no evidence of a real disability, the court only had the concept of perceived disability open to it to find the policy perpetrates discrimination. There is a weakness in the court’s analysis of “perceived disability” because of the assumption the court makes in construing the effect of the policy

The court’s inquiry did not end with a finding that the drug-testing policy is discriminatory; rather the court was compelled to consider if the policy, notwithstanding its discriminatory effect, constitutes a justifiable and reasonable limitation on an individual’s rights.

Policy ‘too severe’

The parties were in agreement that the pre-employment drug screen was rationally connected to the performance of the job. That is to say that the goal of the policy was to increase workplace safety. The parties also agreed KBR had adopted the policy in a good faith and honest belief that pre-employment screening was necessary to achieve the goal of increased workplace safety. Provided KBR could successfully argue that there were no other means of accomplishing that goal, without imposing undue hardship on the company, the policy would be sustained as a reasonable and justifiable infringement.

The court was not persuaded by KBR’s arguments and, in deciding against the company’s position, it concluded employers are not entitled to automatically terminate, without accommodation, on the strength of a positive result from a pre-employment drug screen. The court viewed the KBR policy as “too severe and more stringent than necessary for a safe workplace and not sufficiently sensitive to individual capabilities.”

The decision does not sound the death knell for pre-employment drug and alcohol testing. The keystone to legitimizing such pre-employment testing policies appears to be the offering of accommodation upon a prospective hire having tested positive for drugs. In its reasons, the court focused on KBR’s argument that it would be too costly to require employers to provide counselling programs for prospective employees who tested positive.

However, it was noted by the court that no evidence was led on the relative costs of different forms of accommodation, and KBR having done nothing by way of accommodation was characterized as falling well short of the standard of “every possible accommodation to the point of undue hardship.”

While it was not necessary to a determination of the appeal, the court did consider arguments as to whether the KBR pre-employment drug screen policy was reasonably necessary to reduce the risk of workplace accident or increase workplace safety.

The court said it was unable to determine, based upon the evidence led by KBR, that the imposition of a pre-employment drug screen would correlate to a reduced risk of workplace accidents or an increase in workplace safety. This is a significant aspect of the case as an employer whose pre-employment testing policy is impugned will have to give careful consideration to the nature and extent of evidence led in establishing a correlation between the policy and the goal of increasing workplace safety.

Ancillary to the court’s reasons there are two real positives that emerge from the decision. First, there is a clear acceptance by the court that there are significant drug and alcohol abuse problems amongst the oil sands work force.

Second, the court was prepared to classify Chiasson’s position as safety sensitive since, as a receiving inspector, he was required to verify the quality of materials and equipment to be used by others in the workplace and it was therefore considered reasonably foreseeable that his actions could jeopardize the health and safety of himself and his co-workers.

For more information see:

Alberta (Human Rights & Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., 2006 CarswellAlta 621 (Alta. Q.B.)

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