Northern Exposure

Ruling Helps Alberta Employers Defend Preemployment Testing Challenges

by Michael Ford
McCarthy Tetrault

A long-awaited ruling of the Alberta Court of Appeal clears up some questions related to preemployment drug and alcohol testing related to safety-sensitive positions.

The case – Chiasson v. Kellogg Brown & Root issued December 28, 2007 – involved an admitted casual user of marijuana being terminated from his employment after failing a preemployment drug and alcohol test.

Chiasson was hired by KBR on the condition that he pass a drug and alcohol test. After failing the test, he admitted smoking marijuana five days before he was tested. He was then fired.

The Court of Appeal unanimously upheld the original decision made by an Alberta Human Rights Hearing Panel. The Court of Appeal held that Chiasson was a self-admitted recreational user of marijuana. He wasn’t suffering from a drug addiction.

The court also noted that Chiasson’s termination wasn’t based on the perception by the employer that he was a drug addict. Discrimination based upon perceptions can be a violation of human rights legislation.

Because there was no perception by the employer that Chiasson was an addict, there was no basis to assert discrimination on the basis of a perceived disability. The decision assists Alberta employers in defending challenges to preemployment alcohol and drug tests in safety-sensitive positions.

In recent years, numerous challenges have been raised under human rights and privacy legislation as well as about the legality of such testing.

The court specifically acknowledged the importance of safety in dangerous work environments, observing that, “Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”

The court also noted that its ruling in Chiasson may be at odds with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Ltd. To the extent that this is so, the Alberta Court of Appeal has chosen to decline to follow Entrop.

What does this mean for employers?
As a general rule, prehiring alcohol and drug tests for safety-sensitive positions can be justified in appropriate circumstances.

A recreational alcohol/drug user won’t be protected under human rights legislation if he or she tests positive in a prehiring drug test.

If the job applicant or employee is legitimately suffering a disability arising from an alcohol or drug addiction, then accommodation may still be required, although the level of accommodation may not be significant and will be determined on a case-by-case basis.

Future developments
As we have seen in Alberta, Ontario, and British Columbia, alcohol and drug testing of individuals in safety-sensitive positions remains controversial in Canada and subject to numerous legal challenges.

This decision is related only to preemployment. There are myriad other outstanding decisions pertaining to random, post-incident, reasonable cause, and site-access testing.

Accordingly, this decision doesn’t mean the end of the ongoing litigation in Canada between employers on the one hand and unions, employees, and Human Rights Commissions on the other. However, this decision clearly elevates the importance of safety as a consideration in the ongoing debate over testing in safety-sensitive positions in workplaces.

Extensive materials on alcohol and drug testing in the workplace can be found at www.mccarthy.ca.