Halliburton subsidiary’s drug-testing policy discriminatory
Pre-employment drug testing has been dealt a blow by an Alberta court, but it’s not dead yet, according to a Calgary lawyer.
“I don’t think pre-employment testing is off the table, but (this decision) gives employers some pause for thought as to whether or not they want or need to do it,” said Sean Fairhurst, a partner with the law firm McLennan Ross.
Fairhurst’s comments come in the wake of an Alberta Court of Queen’s Bench decision that said a pre-employment drug testing policy by Kellogg Brown & Root (KBR), a subsidiary of Halliburton, was in breach of the province’s Human Rights, Citizenship and Multiculturalism Act. It marked the first time a court has dealt with the issue of pre-employment drug tests under the act.
The case involved John Chiasson who, on a summer weekend in 2002, smoked marijuana. A couple of days later he got a call from a recruiter with a job offer from KBR, the construction and engineering arm of Houston-based oil-and-gas giant Halliburton, to take a job working in the oil sands in Fort McMurray, Alta.
As part of the hiring process, a pre-employment drug screen was conducted in Edmonton about five days after he used the marijuana. Chiasson was hired by KBR as a receiving inspector subject to a number of conditions, one of which was the successful completion of the pre-employment drug screen. Because the company was desperate to get him on the job, it allowed him to start before it had the results of the test.
Chiasson started on July 8, 2002. On July 17 the results of his drug test came back, showing he had tested positive for marijuana. He was let go the next day.
He filed a complaint with the Alberta Human Rights and Citizenship Commission. Last year a human rights panel ruled that while KBR’s drug-testing policy was prima facie discriminatory, there was no discrimination in this case. That’s because Chiasson said he was merely a recreational drug user and that his use of drugs was a matter of “personal, voluntary choice” and not a disability. But had Chiasson established a disability, either real or perceived, then the withdrawal of employment would have been discriminatory, the panel said.
Chiasson appealed that ruling to the Alberta Court of Queen’s Bench. He argued, and the court agreed, that KBR’s drug-testing policy perceived him to be disabled because it assumed that because he used drugs once, he would use them again.
“The effect of the KBR policy on pre-employment drug testing is to exclude addicted individuals on the basis of actual disability and non-addicted and non-impaired employees from employment based on a perceived disability,” said Justice Sheilah Martin.
Employers in Fort McMurray are dealing with a rash of drug and alcohol abuse, the court said, because of the transient nature of the oil sands workforce, the youth and relative wealth of the population and the absence of social activities in what has been described as a “frontier” environment.
KBR said it was extremely concerned about safety, especially because marijuana is becoming more potent, and that’s why pre-employment drug tests were necessary. The court lauded KBR’s goal of workplace safety.
“Employers have a legitimate interest in prohibiting drug use at work because it is dangerous and exposes employees to increased risk of accident or injury,” said Justice Martin. “It is very easy to see why sobriety is a bona fide occupational requirement in such circumstances and why employers have the right to assess whether employees are capable of performing their essential duties safely.”
But Chiasson was never impaired at work. There was no evidence he was high on the job or that his work suffered.
The court pointed out an obvious flaw in pre-employment tests — a positive test does not show future impairment or even likely future impairment on the job. Yet the applicant who tests positive is not hired.
But Justice Martin was careful to say that her comments were directed only at KBR’s policy and were not a condemnation of all pre-employment drug tests. She ordered KBR to cease its contravention of human rights legislation and refrain from breaching it again.
Andrew Robertson, a lawyer who represented KBR in this case, refused to comment on the decision but said he expects to file an appeal.
For more information see:
•Alberta (Human Rights & Citizenship Commission) v. Kellogg, Brown & Root (Canada) Co., 2006 CarswellAlta 621 (Alta. Q.B.).
Message from the court
Accommodating a job candidate
Sean Fairhurst, a partner with the law firm of McLennan Ross in Calgary, said that while this ruling doesn’t slam the door on drug tests, employers may want to think twice because of what the court had to say about accommodating workers who test positive during a pre-employment drug test.
KBR argued it would be too costly to require employers to provide counselling programs for prospective employees who tested positive.
“However, doing nothing falls well short of the standard of ‘every possible accommodation to the point of undue hardship,’” said Justice Martin. She laid out a number of measures that KBR could have reasonably considered as part of its pre-employment drug policy including:
•full disclosure of pre-employment drug policies to all prospective employees as early as possible;
•the use of a washout period to separate recreational users from potential substance abusers either by combining mandatory disclosure of current drug use with a washout period between the time an employee receives warning of a drug test and the actual test, or by warning prospective employees that a positive result will automatically be followed by a second test;
•independent analysis (psychological screening/work records review) of prospective employees who test positive to assess whether they represent a high risk of being a substance abuser;
•conditional employment (probation) of employees who test positive, but are medically assessed as low risk for substance dependency (admitted recreational users/negative second test/negative followup assessment) under enhanced supervision by drug-awareness trained supervisors and including random impairment tests (saliva testing) for a period of time; and
•withdrawal of the offer of employment from those admitting to or medically assessed as high risk for substance abuse on the condition that the offer may be renewed if the individual voluntarily enters and successfully completes a recognized drug rehabilitation program at their own expense.
“I don’t think pre-employment testing is off the table, but (this decision) gives employers some pause for thought as to whether or not they want or need to do it,” said Sean Fairhurst, a partner with the law firm McLennan Ross.
Fairhurst’s comments come in the wake of an Alberta Court of Queen’s Bench decision that said a pre-employment drug testing policy by Kellogg Brown & Root (KBR), a subsidiary of Halliburton, was in breach of the province’s Human Rights, Citizenship and Multiculturalism Act. It marked the first time a court has dealt with the issue of pre-employment drug tests under the act.
The case involved John Chiasson who, on a summer weekend in 2002, smoked marijuana. A couple of days later he got a call from a recruiter with a job offer from KBR, the construction and engineering arm of Houston-based oil-and-gas giant Halliburton, to take a job working in the oil sands in Fort McMurray, Alta.
As part of the hiring process, a pre-employment drug screen was conducted in Edmonton about five days after he used the marijuana. Chiasson was hired by KBR as a receiving inspector subject to a number of conditions, one of which was the successful completion of the pre-employment drug screen. Because the company was desperate to get him on the job, it allowed him to start before it had the results of the test.
Chiasson started on July 8, 2002. On July 17 the results of his drug test came back, showing he had tested positive for marijuana. He was let go the next day.
He filed a complaint with the Alberta Human Rights and Citizenship Commission. Last year a human rights panel ruled that while KBR’s drug-testing policy was prima facie discriminatory, there was no discrimination in this case. That’s because Chiasson said he was merely a recreational drug user and that his use of drugs was a matter of “personal, voluntary choice” and not a disability. But had Chiasson established a disability, either real or perceived, then the withdrawal of employment would have been discriminatory, the panel said.
Chiasson appealed that ruling to the Alberta Court of Queen’s Bench. He argued, and the court agreed, that KBR’s drug-testing policy perceived him to be disabled because it assumed that because he used drugs once, he would use them again.
“The effect of the KBR policy on pre-employment drug testing is to exclude addicted individuals on the basis of actual disability and non-addicted and non-impaired employees from employment based on a perceived disability,” said Justice Sheilah Martin.
Employers in Fort McMurray are dealing with a rash of drug and alcohol abuse, the court said, because of the transient nature of the oil sands workforce, the youth and relative wealth of the population and the absence of social activities in what has been described as a “frontier” environment.
KBR said it was extremely concerned about safety, especially because marijuana is becoming more potent, and that’s why pre-employment drug tests were necessary. The court lauded KBR’s goal of workplace safety.
“Employers have a legitimate interest in prohibiting drug use at work because it is dangerous and exposes employees to increased risk of accident or injury,” said Justice Martin. “It is very easy to see why sobriety is a bona fide occupational requirement in such circumstances and why employers have the right to assess whether employees are capable of performing their essential duties safely.”
But Chiasson was never impaired at work. There was no evidence he was high on the job or that his work suffered.
The court pointed out an obvious flaw in pre-employment tests — a positive test does not show future impairment or even likely future impairment on the job. Yet the applicant who tests positive is not hired.
But Justice Martin was careful to say that her comments were directed only at KBR’s policy and were not a condemnation of all pre-employment drug tests. She ordered KBR to cease its contravention of human rights legislation and refrain from breaching it again.
Andrew Robertson, a lawyer who represented KBR in this case, refused to comment on the decision but said he expects to file an appeal.
For more information see:
•Alberta (Human Rights & Citizenship Commission) v. Kellogg, Brown & Root (Canada) Co., 2006 CarswellAlta 621 (Alta. Q.B.).
Message from the court
Accommodating a job candidate
Sean Fairhurst, a partner with the law firm of McLennan Ross in Calgary, said that while this ruling doesn’t slam the door on drug tests, employers may want to think twice because of what the court had to say about accommodating workers who test positive during a pre-employment drug test.
KBR argued it would be too costly to require employers to provide counselling programs for prospective employees who tested positive.
“However, doing nothing falls well short of the standard of ‘every possible accommodation to the point of undue hardship,’” said Justice Martin. She laid out a number of measures that KBR could have reasonably considered as part of its pre-employment drug policy including:
•full disclosure of pre-employment drug policies to all prospective employees as early as possible;
•the use of a washout period to separate recreational users from potential substance abusers either by combining mandatory disclosure of current drug use with a washout period between the time an employee receives warning of a drug test and the actual test, or by warning prospective employees that a positive result will automatically be followed by a second test;
•independent analysis (psychological screening/work records review) of prospective employees who test positive to assess whether they represent a high risk of being a substance abuser;
•conditional employment (probation) of employees who test positive, but are medically assessed as low risk for substance dependency (admitted recreational users/negative second test/negative followup assessment) under enhanced supervision by drug-awareness trained supervisors and including random impairment tests (saliva testing) for a period of time; and
•withdrawal of the offer of employment from those admitting to or medically assessed as high risk for substance abuse on the condition that the offer may be renewed if the individual voluntarily enters and successfully completes a recognized drug rehabilitation program at their own expense.
