Yesterday the Alberta Court of Appeal issued its much-anticipated Chiasson v. Kellogg Brown & Root award, and in doing so, found that a casual drug user who was terminated after failing a pre-employment drug test was not subjected to discriminatory treatment under Alberta human rights legislation.
The key issue addressed by the Court of Appeal is whether zero tolerance drug testing policies are de facto discriminatory because they rest on a presumed assumption that casual drug users are at greater risk being impaired at work, in turn, because they are likely to fall into a “cycle of abuse.” This issue – let’s call it the perceived disability theory of casual drug user protection issue – was raised but not clearly determined in the Ontario Court of Appeal’s leading Entrop decision. It is critical in Canadian drug testing law because it determines the scope of legal protection against “unnecessary” drug tests. Ironically, Alberta is one of three provinces that have passed broadly-applicable regimes for protecting employee privacy rights. In fact, a drug testing complaint in which Kellogg Brown & Root is a respondent is now proceeding before of Alberta’s Information and Privacy Commissioner. In other jurisdictions, including Ontario, casual users who are given offers of hire conditional on testing clean have no clear avenue of redress should they feel their privacy rights have been violated.
The Court of Appeal held that the Alberta Court of Queen’s Bench had erred in finding that the complainant was treated as if he was drug dependent and likely to report to work impaired. It rejected the idea that a zero tolerance policy necessarily targets those who are at risk of becoming addicted and held that all the Kellogg Brown & Root policy does is protect against the lingering deleterious effects of cannabis use (a point apparently proven in evidence). The Court of Appeal said:
Chiasson testified that what he did on his own time was his business. He did not at any time suggest that he would cease his recreational use of drugs while employed by KBR. As we have already stated the evidence established that effects of cannabis use lingers for days particularly given that the concentration of active ingredients is now many times higher than it was in the past. Given these concerns the policy’s effects are not misdirected in their application to Chiasson.
We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.
On this view, whether a drug and alcohol policy discriminates against casual users is a question of fact. This is consistent with the employer-favoured reading of Entrop, in which an Imperial Oil policy was that was found to discriminate against all drug users included langauge stating a belief in the “cycle of abuse” to which all drug users subject themselves. The Alberta Court of Appeal suggested that the perceived disability finding in Entrop was simply based on this language.
Chiasson v. Kellogg Brown & Root, 2007 ABCA 426.