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Smithson: Drug testing policy being tested again

It seems that every few years a Canadian employer takes a run at the human rights-based rules preventing workplace drug and alcohol testing.

This time, it’s Suncor Energy in Alberta, and it seems they lost the first round of the battle.

Suncor was the subject of an injunction application, launched by its employees’ union representatives, to prevent random drug and alcohol testing on its employees.

Most recently, the Alberta Court of Appeal turned down Suncor’s appeal of the temporary injunction put in place by a lower court. As a result, no testing can occur until the entire matter is heard and decided by a labour arbitrator.

Suncor had announced, in the summer of 2012, that it would be commencing random testing of its employees.

But that plan hit a snag when the employees’ union grieved it and applied to Alberta’s Court of Queen’s Bench for an injunction.

It its defence, Suncor gave evidence of over 100 workplace incidents involving alcohol or drug use during a span of two years and three deaths in the last decade.

Suncor does have the good fortune that Alberta is a jurisdiction which has shown some openness to the concept of random workplace drug and alcohol testing.

In 2006, the Alberta Court of Queen’s Bench considered the situation of John Chiasson, who had been 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 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 nor was he perceived by the employer to be an addict. Still, he received the protection offered by Alberta’s human rights statute for disabled persons.

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, court, and arbitration decisions applying those laws.

There is no doubt in the law that an employer must not discriminate against a person with 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.

An employer will usually 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 the safety concerns that presents).

And none of these reasons are necessarily dependent upon wºhether 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 per cent of disabled (addicted) drug users from discrimination and extended that protection to the other 90 per cent 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 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 Alberta Court of Appeal summed up its views, stating: “Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”

This decision was welcomed by employers whose operations are at all safety-sensitive.

Whether Suncor will be so fortunate, when its drug and alcohol testing plan is considered by an arbitrator, remains to be seen.

If the decision goes Suncor’s way, Alberta will have firmly established itself as a beachhead for employer rights in the area of drug and alcohol testing.

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