Pre-employment drug testing continues to be discriminatory
Editor’s note: In the June 7, 2006, issue (Issue #463) Sean Fairhurst, a lawyer with McLennan Ross LLP in Calgary, discussed the Chiasson decision in-depth. Now Stuart Rudner offers his take on what this important decision means for employers.
When the Alberta Human Rights Tribunal released its decision in Chiasson v. Kellogg, Brown & Root (Canada) Company, I reviewed the decision and noted that it seemed to be somewhat inconsistent with the Ontario Court of Appeal decision in Entrop v. Imperial Oil Ltd. Perhaps it is not surprising that the Alberta Court of Queen’s Bench recently overturned the tribunal’s decision and substituted a judgment consistent with that in Entrop. The end result is that pre-employment drug testing continues to be seen as discriminatory, even where the individual affected is not addicted to drugs and therefore does not suffer from an actual disability.
John Chiasson was dismissed nine days into his employment after a pre-employment drug test was found to contain positive results for marijuana metabolites. Company policy was clear that a positive result would lead to dismissal or refusal to hire. There was no evidence Chiasson was addicted to marijuana, and he in fact denied any addiction. Rather, he said his marijuana use was recreational. The tribunal therefore found Chiasson did not suffer from a disability, and was therefore not discriminated against on the basis of a disability. Furthermore, the tribunal found that since there was no disability, there was no obligation on the part of the employer to accommodate Chiasson.
The tribunal’s decision was appealed. In rendering its decision on the appeal, the Court of Queen’s Bench considered the focus or intent of the policy, which was workplace behaviour generally, and more specifically drug use in the workplace and impairment while working.
The court also considered the nature of drug testing by urinalysis confirming, as previous decisions had, that such testing cannot and does not measure actual impairment levels. Rather, all it does is confirm previous drug use. However, the employer argued such testing is useful in that:
•a positive result indicates the cognitive potential of the individual may have been altered in the more or less recent past;
•a positive test is a red flag the person has been in contact with a potentially dangerous drug; and
•a positive test result indicates that the person may have a problem with drug abuse or dependence.
The court did not accept this argument and confirmed, as the tribunal had, that pre-employment drug testing is prima facie discriminatory against those who are drug dependent. However, the court found the tribunal had erred in concluding the policy did not discriminate against recreational users such as Chiasson, following cases such as Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) in holding that claims of discrimination may be made based upon perceived, rather than actual, disabilities. This is consistent with the decision in Entrop.
The court did review other jurisprudence on the topic, including the decision in Suncor Energy Inc. v. Communications, Energy and Paperworkers Unions, Local 707. In that case, the worker explicitly denied being addicted to drugs. As a result, the arbitrator found the worker could not complain of discrimination based upon a disability. The court noted the case law was not entirely consistent on this issue.
In Chiasson, the court adopted the approach in Entrop and found that anyone testing positive under the policy was entitled to the protection of human rights legislation. This was based on the notion that the policy treats all prospective employees who test positive for drugs the same: as if they were drug dependent. The policy also assumes they are likely to report to work impaired.
Once there is a finding that a policy is prima facie discriminatory, as there was here, a court or tribunal must then consider whether the policy can be justified as bona fide. The applicable test is as follows:
The parties agreed that the first two prongs of the test were satisfied. On the last prong, the court found Chiasson’s job could properly be classified as safety-sensitive. The court found the zero-tolerance policy for positive drug tests, combined with automatic termination, included no effort to accommodate those who apply for employment. As a result, the court found the only way the employer could succeed was if it could show no accommodation was required in the circumstances. The onus is on the employer in this regard.
The court took particular note of the fact Chiasson worked for nine days before he was dismissed due to the positive drug test result. This suggested that:
•the link between a positive drug test and impairment at work was questionable;
•the employer’s claim that drug testing is essential due to Chiasson’s safety-sensitive position was also questionable; and
•with respect to the level of accommodation required, Chiasson could be treated as an existing employee.
The court noted that other forms of testing are available, and that other measures could have been considered or employed in order to accommodate Chiasson and others. This decision confirms that pre-employment drug testing is prima facie discriminatory, even for recreational drug users, and that employers must accommodate individuals who test positive.
Stuart Rudner is a partner who ¬practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
Related articles
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.
When the Alberta Human Rights Tribunal released its decision in Chiasson v. Kellogg, Brown & Root (Canada) Company, I reviewed the decision and noted that it seemed to be somewhat inconsistent with the Ontario Court of Appeal decision in Entrop v. Imperial Oil Ltd. Perhaps it is not surprising that the Alberta Court of Queen’s Bench recently overturned the tribunal’s decision and substituted a judgment consistent with that in Entrop. The end result is that pre-employment drug testing continues to be seen as discriminatory, even where the individual affected is not addicted to drugs and therefore does not suffer from an actual disability.
John Chiasson was dismissed nine days into his employment after a pre-employment drug test was found to contain positive results for marijuana metabolites. Company policy was clear that a positive result would lead to dismissal or refusal to hire. There was no evidence Chiasson was addicted to marijuana, and he in fact denied any addiction. Rather, he said his marijuana use was recreational. The tribunal therefore found Chiasson did not suffer from a disability, and was therefore not discriminated against on the basis of a disability. Furthermore, the tribunal found that since there was no disability, there was no obligation on the part of the employer to accommodate Chiasson.
The tribunal’s decision was appealed. In rendering its decision on the appeal, the Court of Queen’s Bench considered the focus or intent of the policy, which was workplace behaviour generally, and more specifically drug use in the workplace and impairment while working.
The court also considered the nature of drug testing by urinalysis confirming, as previous decisions had, that such testing cannot and does not measure actual impairment levels. Rather, all it does is confirm previous drug use. However, the employer argued such testing is useful in that:
•a positive result indicates the cognitive potential of the individual may have been altered in the more or less recent past;
•a positive test is a red flag the person has been in contact with a potentially dangerous drug; and
•a positive test result indicates that the person may have a problem with drug abuse or dependence.
The court did not accept this argument and confirmed, as the tribunal had, that pre-employment drug testing is prima facie discriminatory against those who are drug dependent. However, the court found the tribunal had erred in concluding the policy did not discriminate against recreational users such as Chiasson, following cases such as Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) in holding that claims of discrimination may be made based upon perceived, rather than actual, disabilities. This is consistent with the decision in Entrop.
The court did review other jurisprudence on the topic, including the decision in Suncor Energy Inc. v. Communications, Energy and Paperworkers Unions, Local 707. In that case, the worker explicitly denied being addicted to drugs. As a result, the arbitrator found the worker could not complain of discrimination based upon a disability. The court noted the case law was not entirely consistent on this issue.
In Chiasson, the court adopted the approach in Entrop and found that anyone testing positive under the policy was entitled to the protection of human rights legislation. This was based on the notion that the policy treats all prospective employees who test positive for drugs the same: as if they were drug dependent. The policy also assumes they are likely to report to work impaired.
Once there is a finding that a policy is prima facie discriminatory, as there was here, a court or tribunal must then consider whether the policy can be justified as bona fide. The applicable test is as follows:
The parties agreed that the first two prongs of the test were satisfied. On the last prong, the court found Chiasson’s job could properly be classified as safety-sensitive. The court found the zero-tolerance policy for positive drug tests, combined with automatic termination, included no effort to accommodate those who apply for employment. As a result, the court found the only way the employer could succeed was if it could show no accommodation was required in the circumstances. The onus is on the employer in this regard.
The court took particular note of the fact Chiasson worked for nine days before he was dismissed due to the positive drug test result. This suggested that:
•the link between a positive drug test and impairment at work was questionable;
•the employer’s claim that drug testing is essential due to Chiasson’s safety-sensitive position was also questionable; and
•with respect to the level of accommodation required, Chiasson could be treated as an existing employee.
The court noted that other forms of testing are available, and that other measures could have been considered or employed in order to accommodate Chiasson and others. This decision confirms that pre-employment drug testing is prima facie discriminatory, even for recreational drug users, and that employers must accommodate individuals who test positive.
Stuart Rudner is a partner who ¬practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
Related articles
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.
