I spoke today at the Schedule 2 Employers’ Group virtual speakers series about privacy and the pandemic. It was a good chance to describe all of the ways we use information to manage the risk of workplace exposure to COVID-19. We looked closely at the major information flows – screening, location tracking, exposure notification – and I even did a little riff on defense in depth. Slides below for your viewing pleasure.
The Alberta Court of Appeal heard the Kellogg Brown & Root drug testing appeal on October 11th and has reserved judgement. The case will give Alberta’s highest court an important opportunity to consider the circumstances in which casual drug users are protected under human rights legislation based on the perceived disability doctrine. This has been an issue that has caused some uncertainty since the Ontario Court of Appeal’s landmark Entrop v. Imperial Oil judgement in 2000.
Kellogg Brown & Root is about an employee who was terminated 10 days into employment after a pre-employment drug test came back positive for cannabis. He was never impaired at work and testified that that he was only a casual marijuana user. In 2005, an Alberta Human Rights Panel dismissed the employee’s complaint because it was not based on any real or perceived disability and, alternatively, because the testing policy was not reasonably necessary.
In June 2006 the Alberta Court of Queen’s Bench reviewed all of the case law on perceived disability and acknowledged that there is a “difference of opinion” over the right of casual drug users to protection from discrimination. In the end, it chose to adopt the approach taken in Entrop, which allows for a finding of prima facie discrimination based on the circumstances in which the relevant distinction is made. As in Entrop, the Court held that the complainant was treated as if he was drug dependent and likely to report to work impaired. Recall that the policy in Entrop explicitly stated, “In the cycle of substance abuse, users frequently experimenting with drugs progress to the dependent user state later on.” The Court held that this approach to casual users could be implied in any zero tolerance policy and (criticizing a significant Canadian Human Rights Tribunal decision called Milazzo) held that an employer cannot defend against a discrimination claim by proving a subjective belief that the complainant was a casual user.
The Court then held that pre-employment testing was not reasonably necessary to satisfying the objective of “prohibiting workplace impairment.” Its reasoning is summarized in the following sentence: “While there is a rational connection between impairment and job performance, the link between a positive pre-employment urine test and workplace impairment is tenuous and uses predictions based on statistical risk to bar particular people.” More significantly, the Court suggested a number of ways by which the employer could have built a standard which was more accommodative and better connected to the goal of prohibiting (by predicting) workplace impairment.
Incidentally, and implicitly recognizing that the prima facie discrimination analysis in drug testing cases is tortuous, the Court commented that its okay that human rights legislation may be doing “the work of privacy rights.” Since Alberta employers are subject to employment privacy legislation (the Alberta Personal Information Protection Act) and since Oil Sands employers are clearly applying strict drug testing policies, we might expect a statement on drug testing from the Alberta Information and Privacy Commissioner in the near future. In fact, a PIPA complaint was filed against Kellogg Brown & Root that was recently dismissed on jurisdictional grounds. Until the Privacy Commissioner gets his chance to speak, the Kellogg Brown & Root Alberta Court of Appeal case is the one to watch.