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Workplace Drug Testing Enjoying A Rare High

In 2006, the Alberta Court of Queen’s Bench considered the situation of John Chiasson. Mr. Chiasson was offered a job by Kellogg Brown & Root but was dismissed only a few days later after his drug test revealed recent marijuana use. 
 
Chiasson filed a complaint of discrimination with the Alberta Human Rights and Citizenship Commission. The human rights panel dismissed Chiasson’s complaint on the basis that, while he was an admitted user of illegal narcotics, there was no evidence he suffered from the disability of addiction. 
 
The panel’s decision was appealed to the Court of Queen’s Bench and, as a result, was overturned. The Court found that, despite the absence of evidence of an addiction, and regardless of the employer’s perceptions of him, its drug testing policy assumed that a positive test meant he was likely to be impaired at work in the future. The Court relied on logic which says that, through its pre-employment drug testing policy, the employer demonstrated its belief that anyone testing positive is a substance abuser.
 
On this basis, the Court found the policy to be discriminatory and concluded that employers are not entitled to automatically terminate an employee on the basis of a positive drug test. Chiasson was not an addict (and, thus, disabled) nor was he perceived by the employer to be an addict. Nonetheless, he received the protection offered by Alberta’s human rights statute for disabled persons.
 
To understand the importance of this decision, it helps to have a grasp of the essential workings of human rights law. The whole issue of the legality of pre-employment drug testing arises out of human rights statutes (in B.C., under the Human Rights Code or, for federally regulated employers, under the Canadian Human Rights Act) and the tribunal and court decisions applying those laws.
 
But human rights statutes only prohibit discrimination on certain identifiable grounds. One of those grounds is the existence of a physical or mental disability. 
 
There is no doubt in the law whatsoever that an employer must not discriminate against a person with such a disability. And, since an addiction to drugs is considered a disability, if pre-employment drug testing had the effect solely of screening out drug addicts then it would be unlawful. 
 
Unless an employer could demonstrate the practice of drug testing was adopted for a purpose rationally connected to the job, it was adopted in a good faith belief that it was necessary, and it was otherwise impossible to accommodate the individual without undue hardship to the employer, it would have to be halted.
 
An employer would typically argue that its intention in imposing pre-hiring testing is simply to avoid hiring employees who are users of illegal drugs. The employer would say that individuals who have a recent history of drug use will make poor employees (citing reasons such as absenteeism and the potential of on-the-job impairment).
 
And none of these reasons are necessarily dependent upon whether the individual is actually addicted (and, thus, disabled). It’s the sheer use of illegal drugs (and what that says about the likelihood of continuing use) that the employer is concerned about, not necessarily whether or not the person is an addict. So the question becomes one of whether simple users of illegal drugs should be protected by the human rights statutes or whether only addicts should be protected.
 
In Chiasson’s case, the Court’s decision relied on the elimination of the distinction between those who are truly addicted to illegal drugs and those who simply use them casually. The Court effectively took a statute which is intended to protect the 10% of disabled (addicted) drug users from discrimination and extended that protection to the other 90% of casual drug users.
 
In doing so, it prevented employers from labeling individuals who engage in this illegal activity as undesirable candidates for employment. That decision was appealed to Alberta’s Court of Appeal, which has now restored the original decision of the human rights tribunal.
 
The Court of Appeal found that the purpose of the employer’s policy was to reduce workplace accidents by prohibiting workplace impairment. It determined that the policy was directed at actual effects suffered by drug users, not perceived effects suffered by drug addicts.
 
According to the Court of Appeal, the employer’s policy did not perceive Chiasson to be a drug addict. Rather, it perceived that all persons who use drugs are a safety risk (at least in an already dangerous workplace).
 
The Court of Appeal saw the employer’s policy as the same as that of a trucking or taxi company which requires employees to abstain from alcohol consumption before operating the employer’s vehicles. Such a policy doesn’t mean the employer perceives all drivers to be alcoholics. Rather, it perceives that any level of blood alcohol reduces the employee’s ability to operate a vehicle safely. The Court of Appeal determined that this is a valid presumption with a laudable goal.
 
The Court of Appeal summed up its view of the situation, stating that, “Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic”.
 
This is a decision which will be welcomed by employers whose operations are at all safety-sensitive. It doesn’t throw the door open to widespread drug testing, but it does represent a foot in the door for employers (at least those in Alberta). Surely, on such an important question, the Supreme Court of Canada will be petitioned to provide the final word on Mr. Chiasson’s case.

 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.