Alberta's Justice Sheilah Martin finds that recreational marijuana user should be treated as a disability.

By Sarah O'Donnell
CanWest News Service
Jun 29, 2006

EDMONTON - An Alberta judge has ruled that a construction company discriminated against a man when it fired him from an oilsands project after his pre-employment drug screening tested positive for marijuana.

Instead, Justice Sheilah Martin said the man -- a recreational user -- should have been treated the same way as someone with a drug addiction, which is considered a disability in a growing body of human rights case law across Canada.

It is the first time that Alberta's Court of Queen's Bench has addressed the issue of pre-employment drug testing under the province's human rights legislation.

And while the judgment is specific to one company's policy, some are calling it a significant decision.

The decision could place new legal limits on when workers can be tested for drugs.

"It is important for all workers," said Leanne Chahley, an Edmonton labour lawyer who regularly represents unions.

For one, she said, it means that a worker does not have to be disabled to challenge a policy as discriminatory. It also means that companies cannot use drug tests as a tool to automatically weed out potential employees who test positive, she said.

"No one wants to encourage impairment at work, but a drug test is an invasion of your privacy," Ms. Chahley said.

"It shouldn't matter to your employer what you might do on off-duty time. That's your business. It's not your employer's if it doesn't affect your work. This ruling is an affirmation that drug testing is not something they get to deal with in such a blunt way without any accommodation at all."

The case that prompted Judge Martin's ruling, handed down in mid-May, started in 2002 when John Chiasson was hired by Kellogg, Brown & Root for a job as a receiving inspector at Syncrude's plant north of Fort McMurray. As a non-unionized employee, he was required to take and pass a pre-employment drug test.

After taking the test, Mr. Chiasson was immediately put to work. Nine days later, the company learned that his urine tested positive for the active ingredient in marijuana. He admitted that he had smoked pot five days before the test and was immediately fired, as called for by KBR's zero-tolerance policy.

He complained to the Alberta Human Rights and Citizenship Commission. A panel ruled that he was not discriminated against.

Judge Martin overturned the panel's decision.

Although he never used drugs at work and was not a drug addict, the policy treated him like he was, Judge Martin wrote. The requirement that he be tested for drugs with an automatic penalty for a positive test is on its face discriminatory, she said.

"The policy imposes a pre-employment barrier, with zero tolerance, automatic termination and no accommodation," Judge Martin wrote. "It bars individuals from the workforce and a positive test result negatively affects their livelihood."

Alberta human rights legislation prohibits discrimination under 13 grounds, including race, religious beliefs, and physical and mental disabilities. Employers are expected to find room for all types of people in their workplace, up to the point of undue hardship.

Andrew Robertson, the Calgary lawyer representing KBR, said yesterday he could not comment on the decision. KBR officials could not be reached.

But people familiar with the case said they expect the company will appeal.

Construction Labour Relations president Neil Tidsbury, whose group represents industrial, commercial and institutional construction employers, warned against reading too much into the case.

The Chiasson case deals with a specific circumstances, he said, including the fact that the man had already been working for nine days.

The decision says more about what a company should do if someone tests positive, Mr. Tidsbury said, than whether pre-employment testing is allowed.

"If there is a failure and if the person who fails the test was to be assessed by a substance abuse expert, and if the path forward and the consequences were determined on the basis flowing from the assessment, then I think the employer would have gone a long way in respect to accommodation," he said.

Companies that require employees to drug test before setting foot in the workplace say they do so for important safety reasons.

KBR argued in the case that pre-employment drug testing was "a necessary facet of a wider drug and alcohol strategy to counter the pressing danger of the growing drug culture in Fort McMurray." Officials from Syncrude testified that the company's lost time claim rate dropped in recent years, in part because of its drug and alcohol policy that includes new employee drug-testing.

"While impressive, it is not clear what portion of Syncrude's improvement, if any, is the result of drug and alcohol testing," Judge Martin wrote.

Judge Martin also said that the fact that KBR allowed Mr. Chiasson to work before receiving the results of the drug test called into question both the claim that such testing was essential and that he worked in a safety sensitive position.