A Labour & Employment Update
At our recent Employment Law Year in Review seminar, we discussed a significant decision of the Alberta Human Rights and Citizenship Commission on pre-employment drug testing involving the contractor KBR. That decision has just been overturned by an Alberta court, and the reasons are not encouraging for pre-employment testing.
In this case, Mr. Chiasson had been required to undergo a pre-employment drug screen as a condition to the Offer of Employment he received from KBR. Mr. Chiasson started work on July 8, 2002. On July 17, KBR received the results of the pre-employment drug screen. Mr. Chiasson had tested positive for marijuana. Mr. Chiasson admitted that he had used marijuana five days before the drug screen was conducted. There was no evidence that Mr. 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. The following day, Mr. Chiasson was terminated.
Mr. Chiasson throughout admitted to being a recreational user of marijuana, and he further testified that he was not, and had never been, dependent on any drug or alcohol. On this basis, the Human Rights Commission dismissed the complaint because there was no evidence that Mr. Chiasson suffered a disability that would bring him within the protection of Alberta’s human rights legislation. It was this decision that was overturned by the Court, and KBR was ordered to refrain from its pre-employment drug screen policy.
Among the Court’s findings:
- Pre-employment testing, on the face of it, is discriminatory against drug-dependent persons.
- Anyone testing positive under the policy is entitled to human rights protection, whether they are actually disabled or because they are merely perceived to be disabled. The Court found that the policy treated all casual drug users as though they were disabled, even if the evidence showed that Mr. Chiasson was not disabled.
- The policy could not be justified because it did not provide for any accommodation of disabled applicants.
- The Court accepted that Mr. Chiasson's position as a receiving inspector (verifying the quality of materials and equipment to be used by others in the workplace) was safety sensitive.
- Although the evidence supported the fact that significant drug and alcohol abuse problems exist amongst the oil sands workforce, the Court did not accept that pre-employment drug testing reduces the risk of impairment or improves safety because drug tests do not show impairment.
The Court concluded that even though Mr. Chiasson may not be drug-dependent, and regardless of whether KBR actually thought he was drug-dependent, the operation of the policy itself assumed that 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 that the policy was, on its face, discriminatory. We have significant concerns about the correctness of this finding.
We understand that the decision may be appealed to the Court of Appeal. Should that occur, we expect that a significant issue on appeal would be the Court’s conclusion that KBR’s zero tolerance policy assumes that an individual who tests positive for drugs is an abuser of drugs. The premise of the policy is simply that a user, recreational or otherwise, poses a greater safety risk at the worksite. Given there was no evidence of real disability, the Court could only base its finding of discrimination on the concept of perceived disability. We hope the Court of Appeal will clarify this issue.
The Court’s findings regarding the duty to accommodate are more defensible. The Court concluded that 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."
Employers can take away the following conclusions from this most recent decision:
- Although this decision is not fatal to pre-employment drug and alcohol testing, it is an important new challenge to such testing.
- This case relates to a particular policy and particular evidence and thus might be considered unique. It also leaves some questions unanswered about the legitimacy of pre-employment testing.
- The notion of perceived disability is an important issue that will no doubt be addressed in subsequent decisions and, we hope, revised on appeal.
- Offering accommodation when a job applicant tests positive for drugs is a key to legitimizing pre-employment testing policies.
- Employers must consider in advance what evidence they can produce to demonstrate the need for pre-employment testing, the safety or other benefits of pre-employment testing, and the costs of accommodation.
- Employers should consider whether there are effective alternatives to pre-employment drug testing or whether measures can be taken that diminish harsh consequences of the testing policy.
No matter how you see this case, it is clearly an important step in the evolution of drug and alcohol testing in Alberta.