The long-awaited ruling of the Alberta Court of Appeal in Chiasson v. Kellogg Brown & Root (Chiasson) was issued on December 28, 2007. The case involved an admitted casual user of marijuana being terminated from his employment after failing a pre-employment drug and alcohol test. Mr. Chiasson was hired by KBR on the condition that he pass a drug and alcohol test. After failing the test, Mr. Chiasson admitted smoking marijuana five days before he was tested. Chiasson was subsequently fired.
The Court of Appeal unanimously upheld the original decision made by an Alberta Human Rights Hearing Panel. The Court of Appeal held that Mr. Chiasson was a self-admitted recreational user of marijuana. Mr. Chiasson was not suffering from a drug addiction. The Court also noted that Mr. Chiasson’s termination was not based on the perception by the employer that he was drug-addicted. Discrimination based upon perceptions can be a violation of human rights legislation. Because there was no perception by the employer that Mr. Chiasson was drug-addicted, there was no basis to assert discrimination on the basis of a perceived disability.
The decision assists Alberta employers in defending challenges to pre-employment alcohol and drug screening 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, pre-hiring alcohol and drug tests for safety-sensitive positions can be justified in appropriate circumstances.
- A recreational alcohol/drug user will not be protected under human rights legislation if he or she tests positive in a pre-hiring 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.
It is unclear whether the Alberta Human Rights Commission will seek leave to appeal to the Supreme Court of Canada.
As we have seen in Alberta, Ontario and British Columbia, alcohol and drug testing of individuals in safety-sensitive positions remains controversial and subject to numerous legal challenges. This decision is related only to pre-employment. There are still myriad other outstanding decisions pertaining to random, post-incident, reasonable cause and site-access testing. Accordingly, this decision does not mean the end of the ongoing litigation 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 our website, www.mccarthy.ca.