Pre-employment drug testing policy survives appeal court scrutiny

Published on January 3, 2008 by Donna Seale

The Alberta Court of Appeal recently released its review of the first-ever case to reach the courts regarding whether a pre-employment drug testing policy was compliant with human rights legislation. As noted below, the appeal court concluded that the policy in question was not discriminatory. That having been said, employers need to view this decision with caution.

The Facts

The company at the heart of the case, Kellogg, Brown & Root ("KBR"), is an Alberta construction company. When this case arose, KBR had a hiring policy that required prospective employees to undergo and pass a pre-employment drug test. The policy’s intent, as noted in the policy itself, was to prohibit impairment and ensure the ability of employees to work in a safe manner.

John Chiasson, the complainant, was offered a job with KBR. The offer of employment specifically stated that the job was his subject to the results of a pre-employment medical and drug screen. Chiasson took the pre-employment drug test (via urine test) on June 28, 2002 and started working for KBR on July 8. On July 17, the test results came back indicating he had failed. When confronted with the results, Chiasson admitted to KBR that he had used marijuana five days before he took the drug test. (He had thought the marijuana would no longer be in his system when he took the test). The next day, Chiasson was relieved of his job. Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission alleging that KBR’s pre-employment drug testing policy discriminated against him on the basis of disability.

The Legal History

Although the Alberta Human Rights Panel determined that the drug-testing policy was discriminatory on its face against prospective employees who were drug dependent, the panel also found that this determination had no application to Chiasson because he did not actually have a disability (he testified he was just a recreational user of marijuana and there was no evidence led at the hearing to say otherwise) and he was not perceived by KBR to have a disability (there was no evidence to specifically suggest that KBR suspected Chiasson of drug use or impairment at work). In other words, Chiasson failed to prove a prima facie case of discrimination and, as a result, his termination due to application of the drug testing policy was found to not trigger human rights protection. Chiasson and the Alberta Commission appealed this decision.

At the Court of Queen’s Bench, the appeal was allowed. The court agreed with the panel that discrimination on the basis of actual disability could not be found in this case because of Chiasson’s position that he was not drug dependent. However, the court went on to find that there was discrimination on the basis of perceived disability. It concluded that the pre-employment drug testing policy treated all employees who tested positive for drug use, even casual drug users like Chiasson, as though they were addicts and, thus, disabled, for the purposes of human rights legislation. Under this analysis, Chiasson did meet his prima facie case. The court then went on to consider whether pre-employment drug testing was a bona fide occupational requirement. KBR’s position was that drug testing was necessary to ensure the safety of its workforce. The court found otherwise, concluding that KBR’s policy was more stringent than it needed to be to ensure a safe workplace. The court took particular note of the fact that Chiasson worked for 9 days prior to his dismissal due to a positive drug test and had been an excellent employee during that time period. This was found to work against KBR because:

it raised serious questions about the link between a positive drug test and impairment at work;
it called into question KBR’s claim that drug testing was an essential precondition of employment for non-unionized workers in safety sensitive positions;

It was also noted that long-term employees who failed a drug test were not automatically terminated. The Court was of the view that KBR could have continued to employ Chiasson with accommodations being made to ensure Chiasson’s human rights and the company’s concern about impairment at work were both respected.

KBR appealed. The Court of Appeal’s analysis focused primarily on the assumption drawn by the Queen’s Bench that KBR’s policy assumed any person who tested positive for drugs was addicted to drugs. In other words, the court specifically examined the Court of Queen Bench’s conclusion that KBR’s policy was discriminatory on the basis of perceived disability. The Court of Appeal strongly disagreed with the lower court’s conclusion on this point, making the following observations:

evidence before the panel disclosed that the effects of casual use of marijuana sometimes linger for days after its use. At panel, these lingering effects raised concerns regarding the user’s ability to function in a safety challenged environment. At no time did Chiasson indicate that he would cease his recreational drug use while employed by KBR;
as the purpose of the pre-employment drug testing policy is to reduce workplace accidents by prohibiting workplace impairment, a clear connection is formed between the policy, even as it applies to recreational users of the drug, and its purpose;
KBR’s policy does not perceive Chiasson to be an addict. It perceives that persons who use drugs at all are a safety risk. The policy’s effects are not misdirected in their application to Chiasson because of his admission that he would continue his recreational use of marijuana;
this case is 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. Instead, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicle safely;
extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

The Court of Appeal ultimately held that KBR’s pre-employment drug testing policy did not discriminate against Chiasson on the basis of disability and, thus, KBR was not required to provide him with any accommodation.

Commentary

When the Court of Queen’s Bench decision first came out, there was a lot of media buzz and debates amongst lawyers primarily centered around the question of how a person who claimed he did not have a disability could fall within the protections accorded to persons with a disability under human rights legislation and be entitled to reasonable accommodation from an employer. While the Court of Appeal’s decision will, no doubt, provide comfort for those who took issue with the lower court’s ruling, the Court of Appeal’s reasoning is not without its own problems:

the appellate court misconstrued the evidence that came out at the panel hearing. The evidence before the panel was that the presence of marijuana can remain in a person’s system for days after it has been used not that the effects do. Residual impairment was discussed as being unreliable to test;
the court employed the wrong legal test to determine whether Chiasson had made out a prima facie case of discrimination. Rather than more appropriately focusing on whether the policy had an adverse effect on Chiasson (that he was treated differently and unreasonably compared to other new hires either because KBR believed, as a result of the failed drug test, that he had a disability when he did not or they perceived him to have a disability when he did not), the court adopted reasoning relating to whether there was a rational connection between KBR’s policy (automatic termination of employment of any new hire who failed the pre-employment drug test) and its objective of maintaining a safe workplace. While the court acknowledges in its reasons that it was applying an analysis to the issue of prima facie discrimination that is usually reserved for the issue of determining whether a policy is a bona fide occupational requirement, it went on to comment that "we concluded that [this analysis] has a role to play in whether a workplace policy is discriminatory." The court did not, however, provide any authority for proceeding in the way it did and its reasoning certainly runs counter to what the Supreme Court of Canada has said on how to assess prima facie discrimination;
the court uses an analogy relating to alcohol use policies of trucking and taxi companies. This is problematic because, again, we are dealing here with a pre-employment drug test. The expert evidence before the panel that originally heard this case showed that while marijuana impairs a person’s performance, residual impairment is difficult to assess and urine analysis is not a good determinant of a person’s present level of impairment (KBR tested Chiasson’s urine for drug use). From a technological perspective, we have the ability to accurately test for present impairment when a person has consumed alcohol. That is not the case with marijuana use (or drugs in general). As a result, relying on an alcohol testing policy analogy in a drug testing policy case is not particularly useful or relevant.

What the decisions of both the Court of Queen’s Bench and the Court of Appeal show is how real life situations don’t always fit neatly into established legal paradigms. Here, because Chiasson was a non-disabled person claiming discrimination on the basis of disability, trying to come to a conclusion regarding his complaint was like fitting a square peg in a round hole. Because of that, employers who do conduct pre-employment drug testing in their workplaces need to be careful as to how much significance they attach to this decision. KBR’s pre-employment drug policy only survived the scrutiny of the appeal court based solely on the particular facts of the case. The principle still remains that pre-employment drug tests are prima facie discriminatory against drug dependent individuals. [Note that this is NOT the message being reported in the media today].

The Alberta Commission still has the opportunity to seek leave to appeal this decision to the Supreme Court of Canada so the saga may continue.

Concluding Advice

So, what can you take from all of this? Whether or not a work-related drug testing policy will survive a human rights complaint will depend on the particular circumstances of each case. Employers should seek legal advice regarding a proposed or existing drug policy prior to its implementation or enforcement.

Categories: Discrimination,Reasonable Accommodation

4 Comments » Click here to view

4 Responses to “Pre-employment drug testing policy survives appeal court scrutiny”

rob says:

July 8, 2008 at 12:53 am

HI, I TOOK A PRE-EMPLOYMENT DRUG TEST AND THEIR WAS NO LINE NEXT TO (THC)I THINK THIS MEANS I TESTED POSITIVE FOR MARIJUANA. ITS BEEN A MONTH SINCE I SMOKED,I QUIT.THEY SAID IT NEEDS TO HAVE MORE TEST’S DONE.IF THEY GIVE ME THE BAD NEWS,WHICH I THINK THEY WILL,CAN I CONVINCE THEM I DONT USE DRUGS AND HAVE THEM GIVE ME ANOTHER,HELL ILL PAY FOR IT BETTER YET GIVE ME RANDOM DRUG TEST.PLEASE NEED FEED BACK
Donna Seale says:

July 8, 2008 at 7:24 pm

Hi Rob. I am not in a position to give you legal advice in relation to your current situation. I would suggest you contact a lawyer where you live to get the advice you are requesting. If you do not know who to contact, you could call your local Law Society or Legal Aid office in your jurisdiction. Best of luck, Donna.
Children Anxiety Disorder says:

March 21, 2009 at 12:34 am

hey blondie chick.. i love your new haircut… so modern your style!!!!
Affiliate Promotion says:

March 21, 2009 at 12:36 am

“At no time did Chiasson indicate that he would cease his recreational drug use while employed by KBR”
is not just KBR is all the system… would you think they are going to move or change something… i dont think so